DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

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In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Read more →

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9th Circuit Will Rehear Jeppesen Suit

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This will be a very significant showdown for the Constitution. The 9th Circuit will rehear the government’s argument in the Jeppesen Dataplan suit. From the ACLU:

A federal appeals court today announced that it will hear the government’s appeal of an earlier ruling that allowed an American Civil Liberties Union lawsuit to go forward against a Boeing subsidiary, Jeppesen DataPlan Inc., for its role in the Bush administration’s unlawful “extraordinary rendition” program. The government claims that allowing the case to be heard would endanger national security.

In April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The lawsuit charged that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these men to detention and interrogation. The Bush administration had intervened, improperly asserting the “state secrets” privilege to have the case thrown out. The appeals court ruled, as the ACLU has argued, that the government must invoke the “state secrets” privilege with respect to specific evidence, not to dismiss the entire suit. The Obama administration’s appeal of that decision will be heard by an “en banc” panel of 11 judges.

Whichever way the 9th (re)decides, I presume this is headed for Anthony Kennedy’s lap. How can Obama continue to hide all of Bush’s secrets, after all, if he’s only allowed to hide the pieces that are actually classified?

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As Predicted, the Administration Folds on Horn State Secrets Claims

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After Eric Holder came out with his "new" state secrets policy last week, I had this to say:

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.

[snip]

Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

Well, today we’ve got news that the government–after fighting Horn’s suit for 15 years–has all of a sudden decided to settle.

The Obama Administration may be in the process of heading off a court battle over the Executive Branch’s power to control classified information.

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Obama to (Finally) Fulfill One of His Promises

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By agreeing to release logs of visitors to the White House.

The President has decided to increase governmental transparency by implementing a voluntary disclosure policy governing White House visitor access records. The White House will release, on a monthly basis, all previously unreleased WAVES and ACR access records that are 90 to 120 days old. For example, records created in January 2010 will be released at the end of April 2010. The short time lag will allow the White House to continue to conduct business, while still providing the American people with an unprecedented amount of information about their government. No previous White House has ever adopted such a policy.

The voluntary disclosure policy will apply to records created after September 15, 2009, and the first release of records (covering the month of September) will occur at the end of the year, on or about December 31, 2009.

A couple of points on this (and forgive me for being churlish.

First, they’re announcing this as they prepare to screw progressives on health care. If this is meant to be a sop, I’m not buying it).

Second, this is a classic Greg Craig agreement: a voluntary agreement that can be overturned at the whim of the Executive. So while it’s nice and all, it doesn’t cede on Executive Power in the least.

And finally, note that this is just going forward, not historical. So we don’t get a final list of all the lobbyists who have visited the White House when Progressives were still being shut out.

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Missing the Deployed Military for the Trees

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In his post on the story that Cheney wanted to use the military to capture the Lackawanna Six, Scott Horton claims that the October 23, 2001 memo was written (seemingly exclusively) for the kinds of actions Cheney envisioned.

So the Yoo memoranda were almost certainly prepared in order to support a case for the domestic use of the military and in the hopes that by deploying the military, the Constitutional limitations on police action and arrests could simply be avoided.

He also confuses the memos in question, claiming a relatively (!) innocuous memo written for David Kris is the "principal memo" and forgetting that what is really the principal memo in question–the October 23, 2001 one–already has been released (though also read this Jason Leopold comment on a September 21, 2001 memo that is crucial as well).

The disclosures shed considerable light on two memoranda prepared in the Justice Department’s Office of Legal Counsel by John Yoo (with the help of Robert J. Delahunty on the second memo) at the request of then-White House counsel Alberto Gonzales. The principal memo was part of a group published by the Obama Administration on May 16, provoking widespread public concern. In the memo, Yoo argued that the Fourth Amendment could be viewed as suspended in the event of domestic operations by the military in war time. The second memo, not yet released but discussed here by Prof. Kim Scheppele on the basis of references to it in other documents, apparently attempted to read the Posse Comitatus Act of 1878, which forbids the domestic deployment of the military for police functions, into oblivion.

This confusion–and the claims that the October 23 memo primarily envisions the arrest of alleged terrorists by the military–is troublesome, IMO, because it obscures the other known application of the October 23 memo: the authorization of domestic surveillance by the military.

We know the Bush Admininistration had already used the memo in question–at least hypothetically–by the time Cheney floated using the military to detain the Lackawanna Six because Steven Bradbury listed the memo as one of those underlying the domestic surveillance program. Granted, the recent IG Report says any earlier memo–including, probably, the one Leopold notes–is hypothetical (though definitely related). Read more →

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“Protecting” President Cheney

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The NYDN confirms that President Obama has agreed to Cheney’s request that his secret service protection be extended for another six months.

Former Vice President Dick Cheney’s Secret Service protection has been extended for at least another six months, beginning Tuesday.

Breaking! Dick Cheney remains an imperious paranoid fuck!!

Actually, the more interesting news comes (unsurprisingly) at the end of the story.

I’m particularly interested in the narrative construction here. This story was written by James Gordon Meeks, NYDN’s intelligence reporter, and Thomas DeFrank, an associate of Cheney’s dating back to the Ford Administration. And here’s what the two of them report.

Cheney’s friends have said he has become more concerned about his privacy and personal safety in recent years.

Like all "protectees," Cheney can petition the government for additional extensions of Secret Service protection, and several sources close to Cheney predicted he will do so once this new extension lapses.

Normally, the "threat level" diminishes dramatically after Presidents and vice presidents step down. In the post-9/11 world, that may no longer be the case.

Since 1997, former Presidents have been limited to 10 years of government protection. Bill Clinton – and wife Hillary – is the last ex-President entitled to a lifetime taxpayer-funded security cocoon.

Cheney’s friends say their paranoid friend as been more concerned "about his privacy and personal safety in recent years." If the timing here is accurate, the change has less to do with 9/11 (which is not all that recent anymore) and more to do with being an incredibly unpopular thug who shat on our Constitution. Given that the Secret Service agents protecting Cheney have arrested private citizens for what appears to be free speech (and have gone on to tell inconsistent stories about that arrest), I’d suggest Cheney really likes being protected–on the taxpayer dime–from hearing from taxpayers.

And, on the first day of his six month extension of taxpayer funded protection, Cheney’s friends say he plans to ask for further extensions (plural) once this six month extension lapses. Given how old Cheney is and how fragile his ticker, he’s basically asking for lifetime protection. 

Now look at those last two lines. Whose voice is suggesting that it "may no longer be the case" that the "threat level" goes down once a President or (!) Vice President leaves office? Because it makes no sense! Al Qaeda loves Dick Cheney–he took their bait hook, line, and sinker! Read more →

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Will Miguel Estrada Represent John Yoo Before Sonia Sotomayor at SCOTUS?

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I had a bit of a contest on Monday to guess which lawyer was representing John Yoo as Jose Padilla’s suit against him goes forward.

The winner of that poll is the anonymous reader who noted that Miguel Estrada represented Yoo when Yoo testified before Congress last year. You can let me know by email which deserving charity you’d like me to mail your utterly worthless hubcap to…

The Recorder has more details about the tough work Estrada has ahead of him. (h/t WSJ Law Blog)

John Yoo, author of some of the Bush administration’s war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee’s suit against Yoo.

[snip]

Estrada has already been representing Yoo in an investigation by the Justice Department’s Office of Professional Responsibility into the legal work behind the memos. That investigation is ongoing, though the results could be released at any time, and a draft finding reportedly would have referred Bybee and Yoo to State Bar authorities for possible discipline.

As a reminder, this means that Estrada will represent Yoo as he attempts to convince the 9th Circuit to reverse the District Court’s ruling that Padilla’s suit against Yoo can move forward.  And–it is not unreasonable to imagine–regardless of what the 9th Circuit decides, the Latino the Republicans wished had been the first on SCOTUS (Estrada) might soon face the Latina Republicans will grudgingly see confirmed as Justice in the next few weeks for a big showdown over the rule of law. Any bets on whether Estrada makes more money trying to save Yoo from any consequences for his actions (yes, taxpayers will be footing Estrada’s bill) than Sotyomayor will make in her first year on SCOTUS?

In addition to reporting that Estrada will represent Yoo, the Recorder has some interesting speculation from some law professors who have been following the case on why Yoo needs his own lawyer.

New York University School of Law professor Stephen Gillers, who has written about the investigation into the memos, said that the Justice Department should not have been Yoo’s sole representation in the first place, because conflicts of interest between Yoo and his former employer were too likely to occur.

Yoo may have wanted to make arguments that the Justice Department couldn’t pursue, such as implicating other DOJ officials, Gillers said. Read more →

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Feingold Asks Sotomayor about Executive Power

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Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.

FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?

Read more →

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Liz “BabyDick” Cheney Returns

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It was inevitable. Given the news over the weekend that DOJ might investigate PapaDick Cheney, we had to expect Liz "BabyDick" Cheney would be out again defending her Daddy (and, just as inevitably, the press would give her the soap box to do so).

But as more and more investigations start to focus on her Daddy, BabyDick sounds more and more pathetic. For example, here’s her attempt to scold Democrats for upholding the rule of law.

CHENEY: His reaction to the story that we may well be prosecuting folks, I’m happy to talk about that. … You know, he is very angry, as you’ve heard him say publicly. You know the notion that this administration is going to come into office and they’re going to prosecute the brave men and women who carried out this program that kept America safe. It is, it is un-American. It’s something that hasn’t happened before in this country, in terms of somebody taking office and then starting to prosecute people who carried out policies that they disagreed with, you know, in the previous administration. He’s been very public about that.[my emphasis]

Um, no. Depending on who you ask, Holder is considering prosecuting either those who overstepped the stated policy and/or those–like her Daddy–who ignored the law when they developed that policy. But BabyDick has to characterize a potential investigation in terms that conflict with everything Obama and Holder have said about a torture investigation so people don’t note that her–and her Daddy’s–cries of "un-American!!" are really just self-serving claptrap.

As if it would be un-American to tell PapaDick he has to follow the law.

Not only didn’t he–as the guy who redirected efforts in Afghanistan to an illegal war of choice in Iraq–keep us safe. But just about everything he did was un-American.

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Happy American Exceptionalism Day

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tattered-flag.jpgI’m feeling somewhat grumpy about today’s celebration–not because I don’t love this country–but because the whole separation of powers thing seems to be getting a little slow in its old age and Article II continues to stomp on its siblings as well as some of the Amendments.

That said, what remains vibrant about this country is precisely the kinds of conversations, arguments, rants we have here. You are all very exceptional (yup–especially the Canucks). And for that, I thank all of you, and wish you all a wonderful and safe holiday.

(Photo by BL 1961)

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