Not Leaving It Alone

Chris Dodd and some colleagues have announced a bill to repeal retroactive immunity from the FISA law:

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced today that they will introduce the Retroactive Immunity Repeal Act, which eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“I believe we best defend America when we also defend its founding principles,” said Dodd. “We make our nation safer when we eliminate the false choice between liberty and security. But by granting retroactive immunity to the telecommunications companies who may have participated in warrantless wiretapping of American citizens, the Congress violated the protection of our citizen’s privacy and due process right and we must not allow that to stand.”

Senator Leahy, Chairman of the Senate Judiciary Committee said, “Last year, I opposed legislation that stripped Americans of their right to seek accountability for the Bush administration’s decision to illegally wiretap American citizens without a warrant. Today, I am pleased to join Senator Dodd to introduce the Retroactive Immunity Repeal Act. We can strengthen national security while protecting Americans’ privacy and civil liberties. Restoring Americans’ access to the courts is the first step toward bringing some measure of accountability for the Bush-Cheney administration’s decision to conduct warrantless surveillance in violation of our laws.”

Let's make it clear up front: This isn't going to pass. Even if you could get 60 votes for it, which you can't, you have an occupant in the White House who voted for immunity, opening the possibility of a veto if it miraculously got through the Congress.

What this does signify is that some members of Congress will not be content to let the past remain in the past, especially if a great wrong was committed. Maybe they get 30 votes for immunity this year. Maybe 35 next year. And so on. But they keep offering it up, because they don't see the justice in allowing companies immunity for perpetrating a great error by aiding and abetting the government in illegal activities that violated the constitution. So they'll continue to push this at the legislative level. Meanwhile, at the judicial level, EFF and other groups continue to sue the government for real civil penalties to this lawbreaking.

It seems to me that, to succeed in politics, you have to be relentless. Introducing bills like this year after year is one example.

DiFi Can't Handle The Truth

Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy's call for a truth commission to investigate the crimes of the Bush Administration. Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime. It's likely that he did so to take the heat off of himself.

The increased calls for a greater public accounting come as the Justice Department’s internal ethics office is preparing to release a report that is expected to criticize sharply members of the Bush legal team who wrote memorandums purporting to provide legal justification for the use of harsh interrogation methods on detainees despite anti-torture laws and treaties, according to department and Congressional officials.

The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the department knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials.

The report is expected to focus on three former officials of the Office of Legal Counsel: Mr. Yoo, a Berkeley law professor, now on leave at Chapman University, who was the principal author of opinions on national security matters from 2001 to 2003; Jay S. Bybee, who oversaw the counsel’s office during that period and is now a federal appeals court judge; and Steven G. Bradbury, who oversaw the counsel’s office in Mr. Bush’s second term.

Mr. Bradbury wrote two of the opinions released on Monday. Written last October and this January, they broadly repudiated the aggressive theory of virtually unlimited commander-in-chief power at the heart of Mr. Yoo’s memorandums.

But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos. Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper's Scott Horton says, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."

John Yoo’s Constitution is unlike any other I have ever seen. It seems to consist of one clause: appointing the President as commander-in-chief. The rest of the Constitution was apparently printed in disappearing ink.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos "lacked a certain polish," in a profile more concerned with how he's enjoying the beaches and Vietnamese food of Southern California rather than the "hippies, protesters and left-wing activists" of Berkeley. Somehow, he's still teaching law. Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco. Bruce Ackerman recommends impeachment. More on the memos from Jack Balkin and Anonymous Liberal.

Despite the calls of apologists to the contrary, we have to have a reckoning on this. The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law. There is a school of thought that immunity is needed to uncover the truth, much of which we still do not know, but Sheldon Whitehouse disagrees.

WHITEHOUSE: I think the Speaker is absolutely right. The question of when and whether to grant immunity is a very carefully drawn one. … If you’re giving blanket immunities and preventing prosecutions that could and would and should move forward, then you’ve made a mistake.

“[T]he Speaker is dead right that you don’t want blanket immunities that prevent prosecutions from going forward,” he emphasized, “not without a very thoughtful conversation with the prosecutors themselves.”

But one member of the Judiciary Committee wasn't at the truth commission hearing yesterday - Dianne Feinstein. Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal." But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed -- including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public [...]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public [...]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA's operations.

This is basically a turf war. Feinstein wants control of the investigation process in her committee, over Patrick Leahy. And she wants the hearings to be private as well as the final report. Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says--and he's going to start it now. So DiFi issues a vaguely formulated leak saying that she's going to cover the CIA's role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy's investigation. And of course, by doing an investigation that starts with the premise that it is "not designed to determine whether CIA officials broke laws," even while admitting that CIA officers may have gone beyond the "instructions issued in the aftermath of the Sept. 11 attacks," it ensures no accountability even for those who went beyond Cheney's torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts' investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed. This is too important for it to be done in the secret bowels of official Washington as a "fact-finding mission" yielding a white paper that will wind up collecting dust on a shelf. Feinstein is trying to let criminals off the hook, plain and simple. History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.

Putting The Shame In Our Faces

Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.

The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.

The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.

"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."

The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.

The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.

The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:

Bradbury doesn't pull punches, either. In a document entitled "Memorandum for the Files re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities," Bradbury's first paragraph begins with an urge for all members of government to exercise substantial caution on relying on the above-reference memorandum, authored by Gonzales, Haynes, Yoo and Delahunty as precedent of the OLC, and that this "should not be treated as authoritative for any purpose."

Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?

And where is David Addington's name in all of this, since it's fairly well known at this point that he drafted a hefty helping of this dreck? Guess he can draft it but doesn't deign to be a signatory?

Bradbury goes on to issue a blanket statement that the OLC is not to be used for:

"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."

Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?

I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.

Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.

This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.

Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."

Here's Whitehouse and Patrick Leahy discussing their commission proposal on the Senate floor.



"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.

Binyam Mohammed Going Home

This is the least we can do.

A former British resident held at Guantanamo Bay, Cuba, will be flown home early next week, marking the first transfer of a Guantanamo detainee by the Obama administration, according to a source involved in the process, who spoke on the condition of anonymity because he is not authorized to speak on the subject.

The British government had pressed the new administration to make the case of Binyam Mohammed a priority. The release of the Ethiopian native could come as early as Monday, the day Attorney General Eric H. Holder Jr. is scheduled to visit the military facility with top Justice Department officials who are leading a review of the cases of the approximately 245 detainees held there [...]

Mohammed was recently visited by British officials, including a police physician who persuaded him to end a hunger strike. Officials in Britain have said Mohammed faces no charges there and will be released upon his return.

The question is whether there will be a gag order on Mohammed, like David Hicks, or whether he will be allowed to tell his story in his own words, the way Mohamed Barag Fashmilah did to devastating effect in the Huffington Post yesterday. Either way, Bashmilah and Mohammed are symbols of the same disease - a failure to account for the past and unburden the sins of the Bush era.

My physical symptoms are made worse by the anxiety caused by never knowing where I was held, and not having any form of acknowledgment that I was disappeared and tortured by the U.S. government.

I believe that acknowledgment is the first step toward accounting for a wrongdoing. The American public needs to face what has happened to those of us who were disappeared and mistreated in the name of their national security, demand accountability for those who committed torture and other crimes, and acknowledge the suffering of those who became victims. Today, a group of concerned Americans called on President Obama to take the first steps to do just that, by demanding that he establish an independent commission of inquiry into the treatment of detainees in the "War on Terror."

President Obama himself recently said that "democracy requires accountability and accountability requires transparency." If he establishes this commission, it would break the silence about what has happened and signal a real commitment not only to changing the practices of the past but also to ensuring that they do not happen again. Both the American public and the victims of these past policies need to understand what the CIA did in the name of U.S. national security. We need to find out where we were all held and who is still missing. And we need justice for the crimes that were committed in violation of our most basic human rights -- rights the United States has always claimed to uphold and defend. President Obama's recent order to the CIA to shut down its secret prisons was a significant step in the right direction, but it did not resolve the unfinished business of establishing accountability and restoring transparency.

The American public deserves to know what was done to people like me -- and I deserve to know why I lost nineteen months of my life -- all in the name of protecting their security. It gives me faith to see that Americans are standing up for my rights and calling for the truth to be exposed. It is my hope that the President will not only establish this commission, but that he will also direct the relevant authorities to investigate and prosecute those who broke American laws in ordering the torture and disappearance of people like me. Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.

Absolutely. At the very, very least, we need Patrick Leahy's Truth Commission so we can discover the truth and build reforms. However, the Church Commission didn't work to stop a rogue President from attacking the rule of law again. So we need to have real accountability in the form of prosecutions, not clown shows where the likes of Alberto Gonzales "cooperate" the way he cooperated with the Senate Judiciary Committee as Attorney General ("I don't recall, I don't recall.") If the monsters aren't shown the consequences of their wrongs, they will return to do more damage.

...the flip side of the Mohammed release is the terrible case of the Uighurs, who have done nothing wrong but who are not able to get released. An appeals court blocked their transfer to the United States this week.

Stupid Americans, Believing In Constitutional Principles

The standard line from the Village is that we cannot have investigations of Bush Administration officials for crimes like torture or illegal wiretapping because that would take the country through a painful cycle and tear the very fabric of the nation apart and this would be just too mortal a blow to a nation that needs to bind up its wounds. If you actually ask those people these brave Villagers are trying to protect, however, they'd say "Yeah, we're cool with it."

Even as Americans struggle with two wars and an economy in tatters, a USA TODAY/Gallup Poll finds majorities in favor of investigating some of the thorniest unfinished business from the Bush administration: Whether its tactics in the "war on terror" broke the law.

Close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants. Almost four in 10 favor criminal investigations and about a quarter want investigations without criminal charges. One-third said they want nothing to be done.

Even more people want action on alleged attempts by the Bush team to use the Justice Department for political purposes. Four in 10 favored a criminal probe, three in 10 an independent panel, and 25% neither.

Apparently the delicate sensibilities of "the people," as distilled by those in Washington, are not quite so delicate.

The real problem, of course, is the education system. We teach children the preamble to the Constitution and the Declaration of Independence, tell them to remember that all men are created equal and that no man is above the law, and then they actually start to BELIEVE THAT? Somebody change out the textbooks.

If you're part of this nation composed of 2/3 dirty hippies, you might want to take action at Patrick Leahy's new site Bush Truth Commission. A truth and reconciliation commission is really the very least we can do to get the full extent of the crimes out into the light of day. If the President believes the Villager pressure that this will rip the nation asunder and be just a terrible distraction, there's no reason the Congress has to follow. You can watch Sen. Leahy's remarks at Georgetown University in favor of a Truth Commission here.

Congress The Civil Libertarians Of Last Resort?

OK, what the f%&! is going on here? The Obama Administration has an empirically good team on civil liberties at the Justice Department. And yet in the last few days, DoJ lawyers have backed up President Bush's extreme use of state secrets privileges, Leon Panetta - in a generally solid hearing at the Senate Intelligence Committee - told the panel that some detainees were "too dangerous to prosecute" and may have to be held for a long time, and now Elena Kagan, nominated as Solicitor General, has agreed that "enemy combatants" can be detained without trial:

Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

Now reading further, Kagan was apparently led by the nose by Huckleberry Graham on this one. And this isn't totally bad, but there's a significant amount of mission creep that can result. For example, with whom are we at war? When is that war considered over? What is the battlefield? For an Administration that is trying not to use the phrase "war on terror," their stated policies are not necessarily reflecting that. Not to mention the fact that the Supreme Court has ALREADY RULED in this matter and decided that "enemy combatants" as defined by the Bush Administration have habeas corpus rights. Simply put, we are not a nation of laws if we have a separate set of them for some people. The rules of criminal justice can easily apply to all, at the minimum by charging suspects with a crime and giving them a trial.

Perhaps the good that's coming of this is the pressure it is putting on Congress to act, and how they are actually meeting the challenge. Russ Feingold blasted the Administration for their decision to invoke the state secrets privilege, and he is asking for a classified briefing on the matter as well as pushing his own legislation that would limit how state secrets can be used. Similarly, Patrick Leahy is being very adamant about the need for investigating the crimes of the Bush Administration, even talking to the White House counsel about it:

Senate Judiciary Chairman Patrick Leahy and White House Chief Counsel Greg Craig discussed on Tuesday the Senator's proposal to set up a truth and reconciliation commission to investigate potential crimes of the Bush administration.

"I went over some of the parameters of it and they were well aware at the White House of what I'm talking about," Leahy told the Huffington Post. "And we just agreed to talk further."

The dialogue between the Vermont Democrat and the president's office is a new phase in a delicate process concerning how best to handle potential crimes in the previous White House. Leahy proposed an investigatory commission on Monday, after which the president -- speaking at his first news conference -- said he did not currently have an opinion on the plan. Obama went on to say that he would rather look forward than backward, but he promised to prosecute any crime -- whether committed was a former White House official or everyday citizen [...]

Leahy did add an important ripple to the story in the interview with the Huffington Post: Congress will likely proceed with investigations regardless of whether Obama is on board.

"Oh yeah," Leahy said when asked if he would go forward without Obama's endorsement. "I think the Senate and the Congress as whole has an oversight responsibility that has to be carried out here anyway. Now it is much easier with the cooperation of the administration. A lot of things with the subpoenas I issued the past few years, we got a lot of information but a lot of it was held back."

I am unhappy with some of the moves by the Administration on these issues thus far, but am heartened by Congress stepping up to perform its oversight functions.

....the House is introducing a companion bill on the state secrets privilege today, with Rep. Jerrold Nadler (D-NY), John Conyers (D-MI), Zoe Lofgren (D-CA), and Tom Petri (R-WI) signing on.

No Excuse For This

There is no excuse for the Obama Justice Department invoking the state secrets privilege to get a court case on extraordinary rendition thrown out. Men who were illegally kidnapped, flown to Guantanamo and tortured sued the government and the owner of the aircraft used in the rendition, and Obama's officials basically said that the whole matter was a secret and cannot be adjudicated. Here's Ben Wizner of the ACLU, who was one of the lawyers on the case:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.

Greenwald:

What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the "state secrets" privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration's rendition and torture programs -- even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

I've been as vigorous a proponent as anyone for waiting to see what Obama does before reaching conclusions about his presidency, but this is a very real and substantial act, and it's hard to disagree with what ACLU Executive Director Anthony Romero said today:

"Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

As Greenwald goes on to note, Obama has claimed to end this practice of rendition, and yet is invoking the state secrets privilege because revealing the scope of the program would degrade CIA operations - operations that he has said no longer exist. Those statements aren't compatible, and one can only conclude that rendition is continuing, perhaps in a kinder and gentler way. Or more to the point, the Administration doesn't want any consequences for the crimes of the past, reserving the right for future Presidents to absolve them of crimes in the future.

Now, it could be - probably not, but could be - that as Attorney General Holder is reviewing all state secrets claims, the Justice Department wanted to maintain consistency until a decision was made at the top. However, that doesn't square with the actual conversation in the courtroom:

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

“The change in administration has no bearing?” she asked.

“No, your honor,” he said once more. The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Just to bring in some perspective, let's add to this what has been alleged to have happened to one of the five Brits suing the government in this case, Binyam Mohamed. The Telegraph UK reported over the weekend:

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court judges contained details of how British intelligence officers supplied information to his captors and contributed questions while he was brutally tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband to do nothing that would leave serving MI6 officers open to prosecution, or to jeopardise relations with the CIA, which is passing them "top notch" information on British terrorist suspects from its own informers in Britain.

Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He was picked up in Pakistan in 2002 on suspicion of involvement in terrorism, rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in 2004. All terror charges against him were dropped last year.

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

Another source familiar with the case said: "British intelligence officers knew about the torture and didn't do anything about it. They supplied information to the Americans and the Moroccans. They supplied questions, they supplied photographs. There is evidence of all of that."

It was done in our name, using our tax dollars, and now this new Administration, which has spoken very specifically and on the record about the pernicious nature of the state secrets privilege, is now invoking it the same way George Bush had, to avoid accountability. Applying state secrets to get entire court cases thrown out is just the most extreme version of this. Russ Feingold has said:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

Leon Panetta is on the record saying there will be no prosecutions for CIA officers who implemented the crimes of the Bush era. Last night, Obama responded to a question by the Huffington Post's Sam Stein about the need for a truth and reconciliation commission, just so that we would know the extent of the lawbreaking of the past eight years, by dodging the question, saying that if there were "clear instances of wrongdoing" prosecutions should occur, he would be more inclined to look forward and not backward. And we even have evidence that Obama is backsliding on the closure of Guantanamo:

President Obama assured relatives and victims of the Sept. 11, 2001, attacks and the bombing of the USS Cole that he is keeping an open mind about how to handle the approximately 245 detainees held at the U.S. military prison at Guantanamo Bay, according to participants in an hour-long meeting yesterday at the White House.

The president met with about 40 family members and victims, who hold different views on his decision to close the prison in Cuba within a year. The exchange, which was sometimes passionate but never acrimonious, left some who were deeply skeptical of the administration's decision to suspend military commissions at Guantanamo Bay satisfied that the president has not yet decided to abolish the current system of prosecuting suspected terrorists.

Obama told the group that he was only hitting the "pause button" when he sought the suspension of proceedings against 21 detainees, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. And he assured the group that he wants the swift prosecution of those responsible for the terrorist attacks and their facilitators.

This is the rot that comes from a lack of accountability. In covering up someone else's crimes, you inevitably use their methods, which are crimes themselves. They maintain an architecture which can easily be pulled out to cover up your OWN crimes. And it violently damages the rule of law and the ability for Americans to believe in their government.

I'm sick about this.

No Day In Court For The Schloz

The Justice Department's Inspector General report on politicization under the Bush regime was so overwhelming that they had to cut it into sections. Yesterday's release of the section concerning the Civil Rights Division once again invites us to witness the glory that is Bradley Schlozman:

In sum, we concluded, based on the results of our investigation, that Schlozman improperly considered political and ideological affiliations in the recruitment and hiring of career attorneys in the Civil Rights Division, and in doing so, he violated Department policy and federal civil service laws, and committed misconduct.

We found evidence that Schlozman told others in the Department about his success in hiring conservatives. In addition, in his testimony before the Senate Judiciary Committee, Schlozman admitted making such boasts. Numerous e-mails from Schlozman described above also demonstrate that he sought conservative candidates and rejected liberal ones. Further, Schlozman admitted to Special Litigation Section Chief Cutlar in March 2007, after allegations of partisan hiring surfaced in the media: “I probably made some mistakes. . . . I probably considered politics when I shouldn’t have.” Moreover, a statistical overview of the political and ideological affiliations of attorneys hired in the Division during his tenure showed that Schlozman hired far more Republican or conservative attorneys than Democrats or liberals. At the same time, political and ideological affiliations did not appear to have been a factor when attorneys were hired without Schlozman’s involvement [...]

We concluded that Schlozman inappropriately considered political and ideological affiliations when he forced three career attorneys to transfer from the Appellate Section.

As noted above, Schlozman frequently criticized the attorney staff in the Appellate ection and talked of his plan, when he “came into power,” to move certain attorneys from the section to make room for “real Americans.” Based on our interviews and our review of numerous e-mails, we found that Schlozman used the term “real Americans” to
refer to individuals with conservative political views. Appellate Section Chief Flynn also told us that Schlozman named Appellate Section Attorneys A, B, and C as among several in the section whom he considered to be “disloyal,” “not one of us,” “against us,” “not on the team,” or “treacherous” and whom he wanted to move out of the section [...]

We concluded that Schlozman inappropriately used political and ideological affiliations in managing the assignment of cases to attorneys in the sections of the Division he oversaw. According to Section Chiefs Flynn, Cutlar, and Palmer, Schlozman placed limitations on the assignment of cases to attorneys whom Schlozman described as “libs” or “pinkos,” and he requested that “important” cases be handled by conservative attorneys he had hired. In addition, Schlozman expressly inquired about the politics of Cutlar’s nominees for performance awards.

On June 5, 2007, Schlozman testified under oath before the Senate Judiciary Committee in connection with its investigation into the use of political considerations in the hiring and firing of career attorneys at the Department of Justice. At the time of his testimony, Schlozman was Associate Counsel to the Director of EOUSA.

On September 6, 2007, after resigning from the Department, Schlozman responded by letter to supplemental questions for the record posed to him in writing by several Senators as a follow-up to his Senate Judiciary testimony.

We believe that Schlozman made false statements to the Senate Judiciary Committee, both in his sworn testimony and in his written responses to the supplemental questions for the record. In this section, we describe Schlozman’s statements and the evidence that we believe demonstrates their falsity.

That's the bill of particulars, and I believe the words "preponderance of evidence" apply.

And yet, Schlozman will only see the inside of a courtroom in his continued capacity as a lawyer, despite an investigation clearly detailing numerous crimes.

Because the US Attorney in DC, after reviewing this report (which is dated July 2, 2008, and obviously held back until right before Bush leaves town), declined to prosecute.

We referred the findings from our investigation to the U.S. Attorney’s Office for the District of Columbia in March 2008. We completed this written report of investigation in July 2008.

The U.S. Attorney’s Office informed us on January 9, 2009, of its decision to decline prosecution of Schlozman. The Interim U.S. Attorney, Jeffrey Taylor, was recused from the matter and the decision.

So, after taking ten months to decide whether or not to prosecute (ten months which happened to include an election in which one of those named in the report--Hans Von Spakovsky--served on FEC), they now release the report. Nice.

There you have the latest from the culture of accountability.

If I follow this, a Bush appointee committed crimes by hiring ideological soulmates. The Inspector General reported the crimes to Bush's Justice Department, and they held the report. The Bush appointee at the US Attorneys office in DC recused himself, and let his staffers reject the findings. And those ideologues hired through criminal practices will REMAIN in the Justice Department, protected by civil service laws, well into the future.

There's more here, including a peek into the classiness of these folks.

Slapping down "a bunch of . . . attorneys really did get the blood pumping and was even enjoyable once in a while," Schlozman wrote three years later when he left to become the U.S. attorney in Kansas City, Mo.

Schlozman surrounded himself with like-minded officials at the Department of Justice. When he was due to meet in 2004 with John Tanner, then chief of the voting section, he asked how Tanner liked his coffee.

"Mary Frances Berry style -- black and bitter," Tanner replied by e-mail, referring to the African American woman who chaired the U.S. Civil Rights Commission from 1993 to 2004. Schlozman circulated the e-mail. "Y'all will appreciate Tanner's response," he wrote.

Did the fun ever stop?

So this is the inevitable result of an attitude of "looking forward" and making sure abuses "never happen again" instead of prosecuting clear crimes. There were civil service laws violated as well as, you know, lying to Congress. Republicans love to talk about deterrence in the criminal justice system unless they're the defendant. Likewise, the establishment Villagers love to punish the wicked with their knowing glances and poison pens and scorn, unless, you know, one of their own is in trouble.

Here's Pat Leahy.

I really wish that the current U.S. attorney's office appointed by this administration had prosecuted. I think that the only way you stop such blatant criminal violations by people who know better, people who are sworn to uphold the law, (unint.) that they know they'll go to jail for breaking the law. That's what should have been done. And just because they broke the law in the Bush administration and the Bush administration did not, or deemed not to prosecute, I think that raises real questions. Prosecution should be done no matter who breaks the law. I think about one of the people who testified that same investigation and said that, uh, "we swear an oath to President George Bush." I said, "no, you swear an oath to uphold the Constitution. That constitution is the constitution you're sworn to uphold and I'm sworn to uphold and it's the constitution that reflects all Americans." [...]

And when somebody deliberately, purposely sets out to subvert the constitution of the United States, and then lies about it, lies about it, Mr. President, I find that a heinous crime. We will see some kid who steals a car, they'll be prosecuted as they probably should. But when you have a key member of the DoJ lie about it under oath, who subverts the consitution of the United States, all the more reason to prosecute that person.

Silly Leahy. Justice is for those other people.

Party Like It's 1999

The efforts by the right-wing to derail the nomination of Eric Holder is an object lesson in how they will press every advantage, use every trick, and enlist every argument to deliver defeats to their adversary, simply because they treat politics like the sports section, charting wins and losses. They are very effective in the minority, and with a dreadfully bumbling majority as their opponent, that effectiveness will be magnified.

Watch Arlen Specter paint Holder as a cross between Nixon and Idi Amin:

The senator, Arlen Specter of Pennsylvania, who is the ranking Republican on the Judiciary Committee, said Mr. Holder’s support of the White House’s stance on three contentious issues when he was deputy attorney general in the Clinton administration suggested that he was too willing to do the president’s bidding.

“He’s had an outstanding academic and professional record, and I acknowledge that early on,” Mr. Specter said of Mr. Holder in a 25-minute speech on the Senate floor. “But aside from these qualifications on Mr. Holder’s résumé, there is also the issue of character, and sometimes it is more important for the attorney general to have the stature and the courage to say no instead of to say yes.”

Before Tuesday, Mr. Specter had been mildly critical of Mr. Holder’s role in President Bill Clinton’s pardon of the fugitive financier Marc Rich. He said Tuesday that he would wait until the hearing next week to decide how he would vote, but in the Senate speech he let loose on Mr. Holder, comparing him with Mr. Gonzales in his ability to maintain independence from the president.

Mr. Specter raised questions about Mr. Holder’s role as deputy attorney general on a range of issues that included an investigation into the 1993 federal siege in Waco, Tex., that left David Koresh and about 80 of his Branch Davidian followers dead, and an espionage investigation involving a nuclear scientist, Wen Ho Lee.

Neat switch there, huh? It's Holder who is the toady for the new President, as Specter exactly the same criticisms that were launched at Abu Gonzales. What's more, Specter decided to employ the fresh "I was not consulted" criticism, much like Dianne Feinstein used to criticize the selection of Leon Panetta.

Specter said in prepared remarks Tuesday that Obama did not consult with him before choosing Eric Holder Jr. to be attorney general, and he tells Legal Times that Obama also did not consult with him or notify him before announcing four other Justice Department nominees Monday.

“History demonstrates that presidents who seek the advice of members of the Senate prior to submitting a nomination frequently see their nominees confirmed more quickly and with less controversy than those who do not,” Specter (R-Pa.) said. “A recent example is that of President Clinton who consulted with then-Chairman [Orrin] Hatch prior to nominating Justice Ruth Bader Ginsberg and Justice Stephen Breyer to the Supreme Court. Both nominees were confirmed with minimal controversy.

“In contrast, on the nomination of Mr. Holder, President-elect Obama chose not to seek my advice or even to give me advance notice in my capacity as Ranking Republican on the Judiciary Committee, which is his prerogative.”

Be prepared to hear that story about Orrin Hatch and Bill Clinton over and over, by the way. The new rule is that all judicial nominees, maybe all nominees, from Obama must get clearance from Republicans before going forward. That's how things work now.

And as long as we're throwing in the Feinstein/Panetta spat, why don't we connect the dots from Holder to Rod Blagojevich?

In a conference call this morning, Sen. Chuck Grassley (R-IA) continued the assault, saying that “it’s not going to be a smooth confirmation” for Holder. He evoked Holder’s very tenuous ties to embattled Illinois Gov. Rod Blagojevich as reason to be suspicious of the nominee:

GRASSLEY: It signals that it’s not going to be a smooth confirmation. It doesn’t signal that he may not be confirmed. … [H]e was a counsel or at least Governor Blagojevich had sought to have him involved with something with race tracks in Illinois and casinos, I think. And so we’re trying to get freedom of information on that because we need to know what the relationship is with Governor Blagojevich. And I don’t say that in denigrating in any way except Governor Blagojevich’s recent troubles raises questions with anybody that’s had a relationship with him. … [I]t’s not going to be smooth sailing.

Ironically, just minutes before asserting that “anybody that’s had a relationship” with Blagojevich “raises questions,” Grassley insisted that the Senate must seat Blagojevich-appointed Roland Burris. “He’s got a perfect right to have that seat,” Grassley said.

Consistency is the hobgoblin of little Democrats.

It's just a matter of time before all the Justice Department nominees are called out for being insubstantial yes-men with ties to corrupt cronies. And if that doesn't work, conservatives can always play the Terri Schiavo card.

Conservatives are now brushing off the Schiavo case to use it against Thomas Perrelli, President-elect Obama’s pick for the no. 3 spot at the Justice Department. Right-wing websites are outraged at Obama’s association with Perrelli, since he was one of the lawyers who represented Michael Schiavo, who wanted his wife’s feeding tube removed. The Washington Times today reports that these conservatives are now gearing up to fight Perrelli’s nomination:

Andrea Lafferty, executive director of the Traditional Values Coalition, derided Mr. Perrelli’s selection as “just another death-peddler Obama has added to his list of nominees.” She said he’s earned the nickname among pro-lifers of “Piranha Perrelli” for his work on the case.

Tom McClusky, vice president for government affairs at the Family Research Council, said several end-of-life issues could make their way to the federal level in the next four years and having Mr. Perrelli at the department means pro-life causes would have a tougher time winning those debates.

“If the Justice Department isn’t going to do anything about it, the states, what’s to stop them from cases like Schiavo and even worse cases,” Mr. McClusky said.

Now, not all of these are cause for alarm - if the right wants to relitigate the deeply unpopular Schiavo case, by all means, they should go ahead. And I cannot say with certainty that Holder's actions with respect to Marc Rich or any of these other golden oldies was completely laudatory - I would suspect it was less than that. But that's hardly the point, even for conservatives - in the end, their strategy is to chip away at Obama's legitimacy and the legitimacy of his cabinet appointments, in particular Holder. And even if it doesn't pay off until months or even years into the future, it will be a success. Eric Lotke has a good piece on this today.

Losing the election, lacking ideas about how to fix the Bush-era mess, and unsure how or even whether to attack Obama personally, the conservatives are digging into the old bag of tricks. Karl Rove is the point man. The 1990’s are the time frame.

Conservatives are practiced at this attack. The talking points have long since been written and mastered. Talk radio needs the exercise. The Holder nomination represents a pathetic attempt to relive the glory days of the past [...] the Republicans are complaining about an eight year old pardon. The same republicans who sat around while George Bush turned the Department of Justice into a political tool, including hiring his white house counsel as Attorney General and firing US Attorneys who refused to undertake political prosecutions. Now they’re worried that this well proven civil servant, who earned his stripes on public corruption, might have made a mistake eight years ago.

Maybe he did. Or maybe he didn’t. But the world has moved on since then. We have other things to think about. Don’t fall for the distraction of litigating this long-dead case. Resist even the temptation to point out Bush’s own dubious pardons. Our people need doctors, our bridges need building, and the economy needs fixing. There’s work to do.

Politics here count for more than anything. If the conservatives win, it energizes the base for future battles. If the conservatives lose, they are driven farther into their corner. That’s why Karl Rove chose the battleground here, on fertile Clintonian soil.

This is all about picking a fight, trying to "play offense" instead of defense, all of the little petty nonsense that the media sucks up like cats to milk, precisely what can derail an agenda as irrelevancies take priority. Lotke thinks the answer for progressives and Democrats is to play this like a team. Indeed, Patrick Leahy today threw the Gonzales statement back in the face of every Republican who voted to confirm him. I would just be wary that Democrats don't ignore this. It's really quite toxic.

They Don't Know Halfway

After shrugging off Republican caterwauling about the Holder nomination, the only one the right seems to have any interest in making a stink over, Senate Judiciary Chairman Patrick Leahy is pushing back the hearing date a week, a kind of compromise.

The Senate Judiciary Committee will delay confirmation hearings for Attorney General nominee Eric Holder after all -- accommodating Republican concerns that the appointment was being rushed and more vetting of Holder's resume was needed.

In an announcement from his Senate office on Monday afternoon, committee Chairman Patrick Leahy said the hearings would be moved back from January 9 to January 15, giving Republicans more than "30 days from today" to consider Holder's qualifications.

I sincerely hope that Leahy doesn't think this will calm anybody on the other side of the aisle. In fact, there will be some talk that this "proves" the "bipartisan concern" with the nomination, and the perception that it's in trouble, and that Holder will have to endure even more scrutiny, perhaps a request for multiple confirmation hearings, etc. This is not necessarily about blocking Holder from becoming the Attorney General but elongating the process and throwing up doubt. They've de-mothballed Karl Rove to lead the effort:

On Dec. 1, just one day after Holder’s nomination, Karl Rove told the Today Show that Holder’s record “will be examined” because he was the “one controversial nominee“:

ROVE: He was deeply involved as the Deputy Attorney General in the controversial pardon of Marc Rich. … I think it’s going to be clearly examined, if for no other reason that people want to lay down markers that that kind of behavior is inappropriate. … But again, there will be some attention paid to this [...]

Today on MSNBC’s Chris Matthews Show, Washington Post reporter Ceci Connolly revealed that Rove is indeed “helping lead” the effort against Holder:

CONNOLLY: Word on the street is that Karl Rove is going to be helping lead the fight against Eric Holder when his nomination for Attorney General heads up to the Senate.

This is a textbook partisan ploy, designed to engender anger throughout the base and a whiff of illegitimacy to the Justice Department. Of course, that agency is already hopelessly compromised, so any effort to improve it or, ye gods, fire those burrowed deep inside the Department who are responsible for the politicization of the past few years, will then have a counterpoint in the figure of Holder, no matter how ridiculous it may appear.

It shouldn't be any surprise that the one cabinet post Rove is being tapped to sully and turn into a partisan brawl is the one that happens to be investigating him. There may or may not be merit to the idea that Rove wants to provide cover for Bush's pardons, but the Siegelman case threatens Rove where he lives, and he desperately needs to paint it as the rantings of a partisan liberal Justice Department. In fact, painting justice itself as partisan, putting it into the political arena, serves Republican needs in a variety of ways, devaluing the rule of law as just another he-said/she-said situation.

I think Leahy did the wrong thing by listening to these jackals. They have no interest in being mollified.

Grandstanding

Arlen Specter is a threatened incumbent. He wants to keep his job in the US Senate, but he faces challenges from the left and the right. A threatened politician is an unpredictable one. Thus you have him trying to make hay out of Eric Holder's confirmation hearings for Attorney General and his role in the Marc Rich pardon. Nobody much likes the Marc Rich pardon, so Specter probably thinks he gets plaudits from the right for challenging their favorite subject, Bill Clinton (this time by proxy), as well as not much heat from the left. It's ridiculous for Specter to say "questions must be addressed" when he can ask Holder personally, but what he wants is a big buildup to a contentious confirmation hearing where he can rail at the nominee and look all Senatorial. Patrick Leahy is having none of it but I expect that Specter will probably get his wish, or at the very least, if he hasn't delayed the hearings, he's raised the anticipation for them.

Because Specter will be primaried, he will be unpredictable and unreliable throughout the 111th Congress. He's no "moderate" to count on for anything.

Cracks In The Facade

I guess not EVERYONE is enamored of comity and bipartisanship as a cover for backstabbing and despicable behavior. First, Patrick Leahy announced his opposition to Joe Lieberman keeping his committee chairmanship.

Money quote #1: "I’m one who does not feel somebody should be rewarded with a major chairmanship after doing what he did.."

Money quote #2: But I felt that some of the attacks that he was involved in against Senator Obama .... I thought they went way beyond the pale, that they were not fair, that they were not legitimate, that they perpetuated some of these horrible myths that were run about Senator Obama

Money quote #3: I would feel that had I done something similar that I would not be Chairman of the Senate Judiciary Committee in the next Congress.

That's the key. You can look at the committee assignments as basically the spoils for the victor. Lieberman lost. He ran against the nominee of the party and some of its Senate candidates. And yet somehow, people want to reward him for that behavior with a committee chair.

Not Leahy. And not Bernie Sanders either.

"To reward Senator Lieberman with a major committee chairmanship would be a slap in the face of millions of Americans who worked tirelessly for Barack Obama and who want to see real change in our country," Sanders in the statement sent our way by his office.

"Appointing someone to a major post who led the opposition to everything we are fighting for is not 'change we can believe in,'" Sanders continued. "I very much hope that Senator Lieberman stays in the Democratic caucus and is successful in regaining the confidence of those whom he has disappointed. This is not a time, however, in which he should be rewarded with a major committee chairmanship."

Joe Lieberman is an unpopular figure in Connecticut, too, not just among Vermont Senators. His re-elect number is only 35. Ned Lamont would crush him if the election were held today. What Markos said:

So Lieberman can threaten all he wants to caucus with Republicans if he doesn't get everything he wants. Fact is, he's in shaky electoral territory, and it would only get worse if he decided to become a Republican.

Call his bluff. Give him another committee chairmanship in an area where his ideology matches up with the Democratic Party. He won't leave the Democratic caucus. It would be career suicide.

No one likes Joe except for Republicans, yet there are the Senate Dems, once again ready to capitulate. Apparently, old habits die hard.

But maybe they'll prove us wrong and do the right thing.

At least two of them will.

The Right To Vote

Patrick Leahy just endorsed Barack Obama, and the chairman of the Senate Judiciary Committee had this to say about this flap over the "at-large" precincts in Nevada being set up for shift workers at the casinos.

Leahy also came out strongly against the ongoing lawsuit in Nevada, where the state teachers union and some Clinton backers are trying to shut down the special caucus locations for Las Vegas Strip workers. "If you're shutting people out from the nominating process, you're going to be discouraging people all the way down," Leahy said. "And that's not the approach we want to take in the United States."

John Kerry also came out very strongly against this tactic at TPM Cafe yesterday.

For too many years, American politics has been divided between two types of people: those who want more people to vote, and those who want fewer people to vote. Just last week, the Bush-packed Supreme Court heard oral arguments about the kind of law we’ve become all too familiar with these last years: an Indiana law putting more roadblocks in the way of people who simply want to vote. (Talk about a not so subtle reminder of why some of us filibustered Sam Alito’s nomination two years ago this month.)

Well, it’s troubling to me that now we see another kind of effort to keep people from voting in Nevada. But this time, it’s not the Republicans trying to limit the vote, it’s a fight within our own Party [...]

Here are the details. Last March, the Nevada Democratic Party came together and put together the rules of the caucus. Because of the high number of casino workers in Las Vegas, and because those workers have to work on weekends, the Democrats of Nevada decided to have special, at-large caucus sites in certain select areas (like right on the Vegas Strip) to give those working people a chance to make their voices heard. The Culinary Workers Union, who represents the workers, celebrated the move.

Suddenly, a mere days before the caucus, we now see a lawsuit to shut down those at-large sites and deny the casino workers their right to vote. Three of the plaintiffs voted for the very plan they’re now trying to block – reasonable people have guessed they’re changing their minds presumably because just a few days ago the Culinary Workers Union endorsed Barack Obama.

Here’s the bottom line. I understand people gut it out to win on Election Day. But certain tactics make victory pyrrhic – empty – hollow – and it’s not worth winning if you lose what really counts in the process. And you know what, if the Culinary Workers had backed someone besides my choice in this race - Barack Obama - I’d still say it’s right for every candidate to make sure these workers get to vote.

Many have claimed that the Clinton campaign is not behind this effort by the teacher's union, but the fact that Bill Clinton lost his shit on a news reporter who tried to bring this up should throw some cold water on that suggestion.

Mr. Clinton turned the tables on Mr. Matthews, whom the former president asserted had taken "an accusatory tone" by claiming a link to Mrs. Clinton's operation. "Your position is that you think the Culinary Workers votes should count: A--it should be easier for them to vote than anybody else in Nevada that has to work on Saturday. That's your first position. Second, when they do vote their votes should count five times as much as everybody else. That's what the teachers have questioned. So if that's your position, you have it. Get on your television station and say it.... 'All I care about is making sure that some voters have it easier than others and that when they do vote, when it's already easier for them, their vote should count five times as much as others.' That is your position," Mr. Clinton said. "If you want to take that position, get on the television and take it. Don't be accusatory with me. I have enough to deal with." [...]

At one point during the exchange with the TV reporter, (Oakland) Mayor Ron Dellums tried to physically pull Mr. Clinton away, but the former president held his ground.

I have to say that, of all the misunderstandings and misinterpretations and smears by surrogates and everything in this primary, the concerted strategy of disenfranchisement, a tactic at odds with the core values of the Democratic Party in the 21st century, is the most troubling. This is not a media creation or something blown out of proportion or the result of an emotional reading of the impact of race or gender. This is about the right to vote. The Nevada State Democratic Party set these caucuses up in March. The DNC approved them. The state board approved them. I've been privy to similar processes in the California Democratic Party, and they are a transparent, open, small-d democratic process. If the teacher's union or their representatives in the NSDP wanted to object to this they had ample opportunity to do so nine months ago.

We have to make the right to vote sacrosanct. The defining feature of our political lives in this century is the Florida recount, and the voter suppression tactics used prior to Election Day. Republicans successfully manipulated the vote and mau-maued the media into defusing the controversy. There is no glory in any Democrat using the same tactic to win a primary or a general election.

Barack Obama has given us all pause with his comments about President Reagan (The charitable interpretation is that he's simply building on St. Ronnie's hagiography by trying to get some reflected glory for himself; I don't think good progressives should be legitimizing that false portrait). But Obama has been a stalwart on voting rights; in fact, it's one of the rare moments in his Senate career where he boldly led.

Jane Hamsher is correct that this attack on Obama from the Politico is unfair. The FEC cannot implement the provisions of legislation Obama pushed through because Obama (among others) placed a hold on Hans Von Spakovsky, a horrific pick to be a commissioner of the FEC. Obama has been very good on voting rights, and it's ridiculous to hold him accountable for Bush's propensity to pick as regulators people who don't believe in the mission of the agency they are supposed to run.

Abrogating the right to vote in any form or fashion is not a road that Democrats should ever go down. The Obama campaign hasn't been particularly energizing for progressives, but on this he has it absolutely right, and the teachers are trying to punish his supporters in Nevada simply for being his supporters. That is wrong. And the Clinton campaign shouldn't want to get a victory that way.

I'm Not A Puppet! Oh Wait, My Strings Are Being Pulled

Arlen Specter got all bent out of shape for Harry Reid calling Republican Senators "puppets" for George Bush. Then he went out today and played the puppet role well.

A Senate Judiciary Committee vote on contempt resolutions against Karl Rove and White House Chief of Staff Josh Bolten were postponed following an objection by Sen. Arlen Specter (R-Pa.). Under Judiciary Committe rules, the vote will be postponed for one week [...]

Specter, who asked Leahy for a chance to revise the draft resoltions, warned that the whole matter could end in federal court, which is not something he wants to occur.

"It continues to be my hope that this matter could be resolved without litigation," Specter said, although he added that he would back Leahy's effort to enforce the committee's subpoenas.

Then Specter walked out and voted to filibuster a bill that would repeal the alternative minimum tax, which is increasingly hitting the middle class. Despite Democratic fiscal responsibility, seeking to actually offset the loss of revenue that would come from repealing the AMT, Bush puppets wouldn't stand for it.

Arlen, if you want to stop being called a puppet, prove it through your actions, don't whine about it.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

Democratic Opposition Creaking To Life

Adding to a newly emboldened Congress, at least at the edges (baby steps, people), Patrick Leahy has rejected the claim of executive privilege that's keeping White House officials from testifying in the US Attorneys case.

A Senate chairman said Thursday that President Bush was not involved in the firings of U.S. attorneys last winter, and he therefore ruled illegal the president's executive privilege claims protecting his chief of staff, Josh Bolten, and former adviser Karl Rove.

Senate Judiciary Committee Chairman Patrick Leahy directed Bolten, Rove, former White House political director Sara Taylor and her deputy, J. Scott Jennings, to comply ''immediately'' with their subpoenas for documents and information about the White House's role in the firings of U.S. attorneys.

''I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation,'' wrote Leahy, D-Vt.

The ruling is a formality that clears the way for Leahy's panel to vote on whether to advance contempt citations against the four to the full Senate.

While we've seen this before, and we've seen both the House and Senate come tantalizingly close to approving contempt citations, this is closer than ever, and does reflect some new strategic tactics from the Senate Judiciary Committee Chairman. Rerutled has more.

BREAKING: Patrick Leahy Is, Well, SOMETHING Of A Gangster

I'm blown away at how it went down in the Senate Judiciary Committee today. Greg Sargent picks it up.

Sources say Senator Russ Feingold offered an amendment that would have stripped telecom immunity from the bill, but it was defeated. Then Senator Arlen Specter, the ranking GOPer on the committee, offered a "compromise" amendment saying that in these lawsuits the Federal government, and not the telecoms, would be the defendants.

But because of a procedural difficulty Specter's amendment wasn't voted on -- and Senator Patrick Leahy, the chair of the committee, essentially went around Specter's amendment and moved to have a vote to report the bill out of committee without any telecom immunity in it. That passed along strictly party lines. And that's where we are.

I think there was a back-channel deal between Leahy and Reid. There is likely to be a floor fight over this, so telecom immunity is not dead. But Reid is apparently committed to filing a motion to proceed on the bill without telecom amnesty. This is not a slam dunk, as Glenn Greenwald notes.

Even under the best-case scenario -- namely, Reid introduces a bill which does not contain amnesty -- anyone can (and certainly will) offer an amendment to include amnesty in the bill, and no matter what happens, it will be necessary to find 41 Senators willing to support Dodd's filibuster to keep amnesty out of the bill. As indicated, today is a good result in that it's preferable for the bill to have left the Committee today without amnesty in it (especially given the 3 Democratic members' support for amnesty) -- and that's not nothing -- but there is no grand "victory" in the sense that there is now some huge hurdle to having the Senate's bill include amnesty.

It's easier to whip people over stopping an amendment than filibustering the whole bill, that's the improvement. Reid has every ability to limit amendments, by the way, he could also do that. I was inclined to give Leahy a lot of credit for procedural ju-jitsu (by putting through a Title I version of the bill, keeping telecom amnesty in Title II, and then only allowing Title I out of the committee), but I guess there's always an out. This is still anybody's ballgame, but civil liberties forces are in a better position today than yesterday.

UPDATE: The House passed their version of the bill, without immunity. And it's actually a half-decent bill. In addition, the House passed needed mortgage industry reform legislation with a veto-proof majority, and EVERY SINGLE DEMOCRAT voted for it.

Today, I like our Congress. It changes from day to day.

Mukasey Update: Leahy's Out

The Chairman will vote no, saying "I like Michael Mukasey. I wish that I could support his nomination. But I cannot." There are 5 undecided votes out there on the Judiciary Committee (which is really the only place to bottle up the confirmation): Herb Kohl, Chuck Schumer, Ben Cardin, Dianne Feinstein, and believe it or not, Russ Feingold.

He may be the best nominee we can get from this administration in this respect. But I am concerned about his views on executive power, and I am weighing whether his answers to questions in that area adequately demonstrate a commitment to the rule of law.

Feingold has a history of giving wide deference to Presidential nominees; they have to really cross the line for him to vote no. He voted to confirm John Ashcroft and John Roberts, but not Alberto Gonzales. Frankly I don't see that Mukasey really separated himself from Gonzales on the key issues of torture and executive power. We'll see what Feingold thinks. But he should understand that at this point, confirming Mukasey is tantamount to sanctioning his views on these issues. "Best we can get" or not (and according to the President, you won't be getting anyone after Mukasey), that will have far-reaching effects.

Where'd This Come From

I'll believe it when I see it, but the Senate is certainly talking like they're going to reject Michael Mukasey until they get the right answer on torture.

Judge Michael Mukasey's nomination for attorney general ran into trouble Thursday when two top Senate Democrats said their votes hinge on whether he will say on the record that an interrogation technique that simulates drowning is torture.

"It's fair to say my vote would depend on him answering that question," Judiciary Committee Chairman Patrick Leahy, D-Vt., told reporters late Thursday.

"This to me is the seminal issue," said Senate Majority Whip Dick Durbin of Illinois, another member of Leahy's panel. Asked if his vote depends on whether Mukasey equates waterboarding with torture, Durbin answered, "It does."

Leahy has refused to set a date for a vote on Mukasey's nomination until he clarifies his answer to that question.

Of course, a normal Administration would set Mukasey aside and put forth a compromise candidate, but whoever the White House dug up post-Mukasey would probably be worse.

But remember, the McCain torture amendment passed the Senate 90-9. There's a fair bit of consensus on the issue, outside of the Bush Administration and the nutjobs running for President. And Mukasey's answers about a President's right to virtually unchecked executive power ought not to inspire confidence in members of the legislative branch. Indeed, Republicans like Arlen Specter are making noises about voting no, although you can set your watch in Washington by the number of times he "expressed deep concern" and then votes the wrong way anyway.

If Democrats want to make torture a defining issue, I couldn't argue with it. Digby has a fabulous post on the subject the other day, saying that the failure of leadership at the top of the Republican Party has led to a dangerous backsliding on the question throughout the country, and some leadership in the other direction would be welcome.

If you believe that anything the US does is by definition "good" then you might agree that whether or not this act is torture "depends on who's doing it", I suppose. But the technique is exactly the same down through the ages, so there is no way that it depends on "how it's done."

The administration and the Republicans running for president refuse to admit that this practice is immoral and illegal. So does the president's nominee for Attorney General, a man who is currently a judge and someone that anyone could point to as being among the most elite, establishment legal thinkers. You can't really blame all those "Law and Order" fans for publicly going ballistic that their show would even tepidly imply as it did that such practices may be wrong. Their leaders certainly don't seem to think so. Whatever taboo there once was has been completely removed.

Unless the Democrats force Americans to come to terms with their own shame. I refuse to believe that we're too far gone to stuff this right back in the hellish box from whence it came. It just involves people standing up and saying, strongly and clearly, NO. This is not the country I believe in. This is not where I was born. This is not part of me.

WH Offers Surveillance Docs To Senate Judiciary

This is both good news and bad news. The White House earlier demanded that no Congressional committee would see any relevant documents about warrantless surveillance until they agreed to grant immunity to the telecoms. Patrick Leahy and Arlen Specter refused to mark up the bill without seeing the documents, and would not agree to the automatic immunity grant as a reward for seeing them. The White House backed down, and will provide the documents - but only to Leahy and Specter.

The White House has offered leaders of the Senate Judiciary Committee access to legal documents related to the National Security Agency’s warrantless surveillance program, senators said Thursday.

But Senate Judiciary Chairman Patrick J. Leahy, D-Vt., said while the White House had offered the documents to both him and the panel’s ranking Republican, Arlen Specter of Pennsylvania, he was pushing for the entire committee to receive access to the documents. But he also said he would take advantage of the offer and review the documents.

Now, this is good news because the White House is on the defensive, and offering things beyond their initial demands - which the Congress could do all the time on any issue if they just held firm. In a few days, if Leahy rejects passing out the bill from committee without all of the members seeing the documents, the White House will back down.

This is bad news because the Intelligence Committee had the chance to review the documents and they still kept telecom immunity in the bill. They in part honored the deal in exchange for the documents, but few of them articulated actual problems with the program once they saw the documents, with the notable exception of Russ Feingold. The other problem is that everyone who you would worry about caving on this bill has connected telecom immunity to the lack of knowledge of the program. Steny Hoyer made a nice speech yesterday on the importance of restoring Constitutional government, wherein he said that the Congress would not give immunity to the telecoms without knowing what they did. In other words, you can reasonably assume that once he gets to know what they did, he may be fine with allowing them to have broken the law. Specter has framed the issue in this way as well.

So this slight concession by the White House means that this is happening faster than we imagined. That's Harry Reid's takeaway:

Senate Majority Leader Harry Reid, D-Nev., called the White House’s offer a “breakthrough.

“We’re going to get something done, and we need to do it before the end of this year,” Reid said.

Reid is making this all about "getting something done," rather than the relative merits of the bill. That's extremely worrisome.

All of this means that the urgency to contact everyone on the Judiciary Committee and tell them there must not be telecom immunity in the bill just got greater. Of course, there are members of the Intelligence Committee who are also on the Judiciary Committee, and we already know how they voted over there. Dianne Feinstein and Sheldon Whitehouse, I'm looking in your direction. Meaning that honoring the hold is just as important.

UPDATE: Chris Dodd's campaign has a citizen-generated whip count of members of the Judiciary Committee.



UPDATE II: Let it be known that the SJC has been asking for these docs for almost two years, with absolutely no success. Now, when tied to a bill that the WH really really wants, they relent partially, and what Leahy should learn is that they'll relent even more if he remains adamant about not reporting out the bill. This shows that the WH is desperate to move this thing forward with immunity. Now, whether that's just to protect some telecom buddies or that they've done something unspeakbly bad that we don't even know about yet, is the question.