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Obama's Department of Justice, seeking once again to invoke national security secrets as a means to throw out a lawsuit claiming damages, met opposition today in the person of Chief U.S. District Judge Judge Vaughn Walker.

The case is al Haramain Islamic Foundation et al. v. Bush et al. Per Electronic Frontier Foundation:

This case alleges targeting of the leaders of an Islamic charity and their lawyers by the admitted, targeted warrantless wiretapping by the NSA. It is based on a document that was accidentally disclosed to the plaintiffs by the government that the plaintiffs allege demonstrates that they were subjected to warrantless wiretapping (the exact facts are held under tight seal).

SF Gate picks up the story, describing a combative group of government attorneys warning Judge Walker that they would take their appeal to federal appeals court if he didn't order a stay in his January 5 order allowing the wiretapped plaintiffs to "to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit."

Jon Eisenberg, lawyer for Al-Haramain Islamic Foundation, which filed the suit, said, "They have drawn a line in the sand between the executive and the judiciary, saying, 'You do not control these documents, we do'"....

Numerous groups brought similar cases after Bush acknowledged that he had ordered the National Security Agency in late 2001 to intercept phone calls and e-mails between U.S. citizens and suspected foreign terrorists without congressional or court approval. But only Al-Haramain's case survives.

Obama attacked the surveillance program as a presidential candidate, promising "no more illegal wiretapping of American citizens" in an August 2007 speech.

To the government's likely chagrin, Judge Walker denied the government request for a stay, and even seemed to get a little testy with the government in his denial order (emphasis added):

First, the January 5 order is not a “final decision” and, therefore, not appealable pursuant to 28 USC § 1291. Second, the court is fully aware of its obligations with regard to classified information. The court’s January 5 order stated that it would prioritize two interests: “protecting classified evidence from disclosure and enabling plaintiffs to prosecute their action"....

The court seeks from the government implementation of the steps necessary to afford that “both parties have access to the material upon which the court makes a decision.” That is the procedure the January 5 order seeks to put in place. That order is, therefore, entirely interlocutory and an “immediate appeal will not materially advance ultimate termination of the litigation.” An appeal under 28 USC § 1292(b) and stay are not appropriate and are, therefore, DENIED.

Obama's promises are proving as empty, especially when it comes to exposing or prosecuting national security crimes. DoJ's actions in the al Haramain case must be seen in the context of the intervention by Secretary of State Hillary Clinton's State Department warnings to the British government not to reveal in court information on torture in the Binyam Mohamed case, nor from the decision to invoke "state secrets privilege" last Tuesday on the Jeppesen CIA rendition lawsuit.

[Note: Thanks to commenter not a cent for pointing out that the State Department warnings were pre-Obama. However, the UK judges in the Binyam Mohamed case stated that their decision to withhold secret documents was because "they had 'been informed by counsel for the Foreign Secretary that the position had not changed' with the inauguration of Barack Obama." Furthermore, the judges, outraged by the intervention, mentioned it eight times in their ruling. Foreign Minister Milibrand confirmed the British were following the U.S. lead, though some suspect they were also glad to keep secret British collaboration in the torture. See Andy Worthington's full article.]

Who cannot see a pattern here? ACLU Blog of Rights is reporting more obstruction by the Justice Department, this time in the FOIA lawsuit to get access to Bush's Office of Legal Counsel memos on "harsh interrogation methods":

On Wednesday, the Justice Department requested a 90-day stay so it could have more time to review three torture memos that we’ve specifically re-requested for release through our five-year-old Freedom of Information Act request. These three memos, written by then-head of the department’s Office of Legal Counsel (OLC), contain authorizations to subject detainees in CIA custody to harsh interrogation methods that amount to torture, and the legal opinions that justify them.

We sent the judge on the case a letter asking him to deny the request for a 90-day stay. We’ll be back before the judge on February 18 arguing against the stay.

This kind of behavior by the Obama administration beyond unacceptable. Obama and his Justice Department are using Bush's old play card, and his promises about "change" and "hope" are revealed as false. How quickly the national security establishment puts their stamp upon the new president!

This isn't naivete anymore, and the claptrap from Obama supporters that Obama is only playing for time, waiting for the right moment to spring his brand new "open" policy, has nothing but the hubris of Marc Ambinder to recommend it.

And what kind of national security secrets -- secrets the Justice Department alleges could cause "grave harm" to this country -- is the administration seeking to protect? Could it be anything like this new revelation coming from the pages of the British paper, The Age?

THREE human rights groups have obtained documents that confirm US Department of Defence involvement in the CIA's "ghost" detention program, and the existence of secret prisons at Bagram air base in Afghanistan and in Iraq.

The groups said these documents confirm the existence of secret prisons at Bagram and in Iraq; affirm the Defence Department's co-operation with the CIA's "ghost" detention program....

The groups said the documents also revealed that Defence had a policy not to register prisoners with the Red Cross for 14 days and sometimes for 30 days in the interests of collecting intelligence and that this policy was known to the Joint Chiefs of Staff.

"These newly released documents confirm our suspicion that the tentacles of the CIA's abusive program reached across agency lines," said Margaret Satterthwaite, director of New York University's International Human Rights Clinic. "In fact, it is increasingly obvious that Defence officials engaged in legal gymnastics to find ways to co-operate with the CIA's activities."

It is evident that the U.S. will do whatever it can to protect its own terror apparatus, one which kidnaps people without cause or legal right from foreign countries, or even from U.S. airports, and sends them to be tortured in CIA or foreign prisons, that bullies other countries, that falsifies or "cooks" intelligence information to justify "shock and awe" bombings and the invasion and occupation of other countries (Iraq, Afghanistan), etc.

Obama has shown by his actions thus far that he intends to be the commander-in-chief in ways that would seem familiar to the former denizens of 1600 Pennsylvania Boulevard. Congress, meanwhile, has shown a shadow of a backbone, threatening to pass legislation to make it harder to invoke state secrets, and making noises about a "Truth and Reconciliation" commission to investigate the former administration's crimes. But Beltway opinion is hardening around opposition to widespread calls for prosecutions for former Bush Administration officials.

But "Truth and Reconciliation" commissions are no substitute for justice. As William Fisher reports in an article earlier today:

Marjorie Cohn, president of the National Lawyers Guild, does not favor the “truth and reconciliation” approach. She told us, “As President Obama said, ‘No one is above the law.’ His attorney general should appoint a special prosecutor to investigate and prosecute Bush administration officials and lawyers who set the policy that led to the commission of war crimes. Truth and Reconciliation Commissions are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.”

A similar view was expressed by Peter M. Shane, a law professor at Ohio State University. He told us, “The immunities that might be granted in connection with a congressional or commission investigation of the Bush Administration could well compromise the prospects for criminal prosecution, as our experience with the Iran-Contra affair demonstrates.  There is likewise reason to fear that justice cannot be completely served without recourse to prosecution.”

In the end, President Obama may not be able but to play out his role to the end: commander-in-chief of a corrupted military and CIA, bound to defend them, because he cannot trust in the people he said he would lead, and is beholden to those who he feels hold all the power around him. But he is wrong. Paraphrasing a slogan from forty years ago: the People are the Power. We the People.

H/T Patriot Daily News Daily, whose Overnight News Digest is a Daily Kos treasure. Also see kovie's diary earlier today on the al Haramain case and Judge Walker's decision.

Finally... this is crossposted at Invictus

Originally posted to Valtin on Fri Feb 13, 2009 at 10:36 PM PST.

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Comment Preferences

  •  Tip Jar (34+ / 0-)

    This isn't just another diary on the al Haramain case, but puts it in context of other recent and current actions by the Obama/Holder DoJ that together represent a serious pattern of obstruction in precisely the kinds of cases an earlier Obama promised transparency and a new beginning.

    Serious times. Hard to swallow facts.

    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

    by Valtin on Fri Feb 13, 2009 at 10:37:57 PM PST

  •  Too early and too few a case to detect any (6+ / 0-)

    pattern.

    From Alabama to Obama - You've come a long way baby.

    by amk for obama on Fri Feb 13, 2009 at 10:45:12 PM PST

  •  I am not thorougly immersed (14+ / 0-)

    in the prior procedures of this case but I will offer my reaction to the bit that one reads in the press:

    A stay is not a request for dismissal -- it is a stay.  I am guessing that the DOJ lawyers in the Al-Haramain case are the same ones who handled it during the Bush administration -- because of their stoopid tactic of being aggressive with the judge and threatening something that a third year lawyer knows they can't do -- appeal without a final order or judgment.  The clock ticked out on them.  

    Holder was just confirmed -- he doesn't even have his full staff in place.  As with the ACLU FOIA request -- the request was for a stay.  Why?  Because he just got into the most fucked up agency in the history of the DOJ and might want to straighten things out before jumping to conclusions.

    There's a pattern alright -- it is a pattern of caution.  A stay is a stay -- not a dismissal or refusal.

    This frigging hysteria over legal issues where folks here get their information from goddammed newspapers rather than know legal procedure is driving me nuts.

    Now, carry on with the Obama and DOJ bashing.

    You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

    by gchaucer2 on Fri Feb 13, 2009 at 10:47:13 PM PST

    •  I can't even begin to imagine the legal (4+ / 0-)
      Recommended by:
      gchaucer2, kafkananda, Floande, Ilikepie

      entanglements Obama's administration will have to sort through. Requesting more time would seem prudent because Bushco simply claimed everything a "state secret." It would be extremely damaging to the Obama Administration if they rushed to release something "classified" that should have stayed "classified" and all hell breaks loose. Now is not the time to rush.

      Through all your faults and all my complaints, I still love you.

      by jayden on Fri Feb 13, 2009 at 10:55:28 PM PST

      [ Parent ]

      •  No one' (0+ / 0-)

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Fri Feb 13, 2009 at 11:02:37 PM PST

        [ Parent ]

      •  No one's rushing anyone (4+ / 0-)
        Recommended by:
        walkshills, Valtin, kurt, jayden

        Except the Obama DoJ trying to rush the courts to effectively dismiss. There's no way in hell that the courts would allow actually sensitive evidence to be leaked and threaten national security. The implication that they might and that therefore Obama has the right to withold evidence is absurd and dangerous.

        So I agree, Obama's DoJ should not be rushing this. Yet they are. Hmm.

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Fri Feb 13, 2009 at 11:04:23 PM PST

        [ Parent ]

        •  A stay is not a dismissal (2+ / 0-)
          Recommended by:
          kat68, Ilikepie

          jeebus -- that is why they are two distinct motions in the world of legal land.

          You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

          by gchaucer2 on Fri Feb 13, 2009 at 11:07:01 PM PST

          [ Parent ]

          •  They were not in a position to ask for dismissal (5+ / 0-)
            Recommended by:
            Xapulin, walkshills, kovie, jayden, limpidglass

            from this judge. They already plan to appeal, they make that clear in their submission to the court. They plan to appeal and ask for dismissal, just like in the B. Mohamed case.

            Also in this case, temporizing is only for cover-up. The "secret document" has already been seen. I bet the plaintiffs feel like dopes for having been good guys and given the document back to the government. Now the government won't let them have it back in order to press their case.

            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

            by Valtin on Fri Feb 13, 2009 at 11:10:43 PM PST

            [ Parent ]

          •  Jeppesen was a motion to dismiss (4+ / 0-)
            Recommended by:
            walkshills, Valtin, costello7, SPD

            Or are you referring to Al-Haramain?

            And as for Al-Haramain, the appeal, if granted, would effectively end the suit and be the same thing as a dismissal for plaintiff since they wouldn't have a case.

            And in which case was there a motion to stay? I know of none.

            The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

            by kovie on Fri Feb 13, 2009 at 11:18:19 PM PST

            [ Parent ]

            •  I'm referring to Al-Haramain (1+ / 0-)
              Recommended by:
              burrow owl

              as that was what was referenced in the diary.  The judge did not issue a final order or judgment.  If they are moving for an interlocutory appeal, it is only on the matter of the handling of the the supposed state secrets -- by the judge.  It is not about dismissal.

              You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

              by gchaucer2 on Fri Feb 13, 2009 at 11:25:36 PM PST

              [ Parent ]

              •  The intent is clearly to dismiss (3+ / 0-)
                Recommended by:
                Valtin, jayden, costello7

                even if the motion isn't. If it fails, dismissal will be a next step.

                The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

                by kovie on Fri Feb 13, 2009 at 11:30:22 PM PST

                [ Parent ]

                •  That may be (2+ / 0-)
                  Recommended by:
                  burrow owl, ablington

                  I only look at what is actually before the court -- not the next step down the road.  I've done it myself for delay in order to get more information -- file a motion for stay and hope it gets granted.

                  I tend to hold fire until I see that motion for dismissal filed.  Also, it is a rare event for an AG or state prosecutor to not protect his/her client -- which is the US or the State.  I'm not saying I like it -- but that is their legal duty.  The US is the defendant here.  Gerry Brown is the first prosecutor I've seen actually buck the state in the Prop 8 case.

                  You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

                  by gchaucer2 on Fri Feb 13, 2009 at 11:40:31 PM PST

                  [ Parent ]

                  •  I'm not complaining against the government lawyer (2+ / 0-)
                    Recommended by:
                    walkshills, Valtin

                    but the DoJ, which instructed him to do this. Sure they're tying to win a case, but that case itself is inherently contemptible. They are trying to both defend torturers and wiretappers and assert the doctrine of unchecked executive power. That Obama would try to do both is beyond despicable, and if it wasn't his intent, he'd have taken a different course, at the very least asked for a delay while they sort through the evidence and decide how to proceed--ideally, with a criminal investigation.

                    I do see how either way, it's a huge mess for Obama even if he believes that crimes were committed and people deserve to be punished for them. If he drops the motions and allows the suits to proceed, he'll be compelled to present evidence that would not only imperil former Bushies and possibly some Dems (which however meritorious will cause him political problems without a doubt), but also reveal things about our national security apparatus that even without their being super sensitive would damn it and its members and cause the US to lose tremendous face around the world. Justice would be served but damage would be done. And if he tries to squelch this evidence to prevent this, he validates the Bush Doctrine of unchecked presidential power.

                    So ideally, he'd ask for a delay, which he'd surely be granted since these are for past events and no ongoing harm is being asserted (I believe), to give him time to figure out what to do, which ideally would involve a special prosecutor. But taking the path that he is taking just seems dangerous in terms of separation of powers and executive power issues. It makes no sense unless he either WANTS these powers, or else expects the courts to rule against him, which seems strained.

                    It's just weird, that's all. Very weird.

                    The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

                    by kovie on Fri Feb 13, 2009 at 11:53:41 PM PST

                    [ Parent ]

                  •  Au contraire (1+ / 0-)
                    Recommended by:
                    walkshills

                    By treaty law (Convention Against Torture) it is not their legal duty to obstruct investigations or prosecutions against torture (as in Jeppesen, or the Mohamed cases). In fact to do so is to put them in violation of the law. In the al Haramain case it may be more of an ethical breach, and a political betrayal, although one can argue it is a violation of the oath to uphold the Constitution.

                    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                    by Valtin on Fri Feb 13, 2009 at 11:56:41 PM PST

                    [ Parent ]

                    •  They're not bound by the CAT. (1+ / 0-)
                      Recommended by:
                      walkshills

                      The CAT was non-self-executing (the senate expressly said so as they ratified), so we look to the implementing domestic law to divine the DOJ's duties.

                      We are building a team that is continuously being built. - Sarah Palin

                      by burrow owl on Sat Feb 14, 2009 at 05:29:56 AM PST

                      [ Parent ]

                      •  Those laws were implemented by Congress (1+ / 0-)
                        Recommended by:
                        walkshills

                        specifically for CAT. See Congressional Research Service report on CAN, Overview and Application to Interrogation Techniques:

                        The United States ratified CAT, subject to certain declarations, reservations, and understandings, including that the treaty was not self-executing and required implementing legislation to be enforced by U.S. courts. In order to ensure U.S.compliance with CAT obligations to criminalize all acts of torture, the United States enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder). The applicability and scope of these statutes were the subjectof widely-reported memorandums by the Department of Defense and Department ofJustice in 2002. In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions.

                        Obama's EO removed the applicability of the latter memos.

                        Furthermore, there were more enabling acts of Congress on this, including the Detainee Treatment Act and the  the National Defense Authorization Act for FY2006.

                        The enabling legislation was passed, in part, because, "The United States nevertheless has an international obligation to adjust its laws as necessary to give legal effect to international agreements."

                        War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                        by Valtin on Sat Feb 14, 2009 at 06:59:55 AM PST

                        [ Parent ]

                        •  Sure, but the point above was whether the (0+ / 0-)

                          US DOJ has a legal duty to prosecute that arises out of the CAT.  The CAT expressly says that parties have a duty to prosecute.  Under US law, by contrary, prosecutors and the executive are given broad latitude to decide whether the pursue a particular case.  

                          So in order to rebut that, you'd need to show me a statute that specifically implemented the "duty to prosecute" clause of the CAT, rather than the substantive law banning torture.

                          We are building a team that is continuously being built. - Sarah Palin

                          by burrow owl on Sat Feb 14, 2009 at 07:49:28 AM PST

                          [ Parent ]

                          •  Okay, then (1+ / 0-)
                            Recommended by:
                            Nightprowlkitty

                            There's no get out of jail card here, burrow owl.

                            The CAN treaty specifically states:

                            Article 4

                              1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
                              2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

                            Article 5

                              1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
                                    1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
                                    2. When the alleged offender is a national of that State;
                                    3. When the victim was a national of that State if that State considers it appropriate.
                              2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article....

                            Article 7

                              1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
                              2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

                            You are correct that Articles 1-16 of the treaty are said by the U.S. to be self-executing, one of a number of reservations made by the U.S. that led to ratification of the treaty. But in those reservations is the following:

                            U.S. Reservation II (5) of the Convention Against Torture states (emphasis added):

                            1. That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing Articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfillment of the Convention.

                            So the U.S. is obligated to implement sections 4,5, and 7. One cannot take the fact that it mentioned specifically that it would implement Articles 10-14 and 16 as any limitation upon what articles it would implement. If for some reason these articles are not implemented yet, then they should be, and prosecutions can proceed.

                            I do not know if they are already implemented. The CRS report on CAN is silent on the issue.

                            I also believe that the Geneva Conventions require a duty to prosecute war crimes. So there are two routes to go in readying prosecutions. From The Progressive:

                            No less a figure that the UN’s Special Rapporteur on Torture said on CNN Monday that "Rumsfeld clearly authorized torture methods." The Rapporteur, Manfred Nowak, said the United States has an "obligation" to investigate this, and he has passed his recommendation on to the United Nations.

                            The smoking gun is a December 2, 2002, directive Rumsfeld issued that ordered sensory deprivation, stress positions, isolation, and the use of dogs on prisoners.

                            He also admitted hiding at least one detainee from the Red Cross, which violates the Geneva Conventions.

                            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                            by Valtin on Sun Feb 15, 2009 at 02:18:42 PM PST

                            [ Parent ]

                          •  Further (0+ / 0-)

                            On the question of prosecutorial discretion on these matters see discussion at Opinio Juris, "Does CAT Require the Prosecution of Torturers?", and "Sands and Lithwick on the Prosecution of Torturers".

                            Re limitations on prosecution, here's a passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment (H/T Kevin Jon Heller) (emphases added):

                            Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture.  The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only.  In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment.  The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture.  If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

                            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                            by Valtin on Sun Feb 15, 2009 at 03:14:06 PM PST

                            [ Parent ]

                      •  Also (0+ / 0-)

                        They ARE bound by CAT. It is a treaty and subject to Constitutional law now. Just because it is self-executing doesn't mean they aren't bound by it. In fact, the U.S. Reservations make that very point in II (5), which I have quoted elsewhere in this thread.

                        Calling a treaty "self-executing" is not a clever way to abrogate the very treaty you are ratifying. That would destroy all concept of international law.

                        Speaking of international law, here's the situation with Geneva:

                        "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

                        "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

                        "Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

                        "In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention."

                        Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

                        War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

                        by Valtin on Sun Feb 15, 2009 at 03:03:33 PM PST

                        [ Parent ]

        •  Your reminder is helpful. (3+ / 0-)
          Recommended by:
          Valtin, kovie, HoundDog

          The court's ability to adequately protect sensitive information was stated by the judge in his denial  as was noted in the diary.

           

          Through all your faults and all my complaints, I still love you.

          by jayden on Fri Feb 13, 2009 at 11:12:28 PM PST

          [ Parent ]

      •  The "all hell breaks loose" (2+ / 0-)
        Recommended by:
        Creosote, kovie

        is American outrage at what it's government under GOP committed in its name: barbaric torture, kidnapping, complete disregard for individual rights, massive wiretapping, etc.

        Yes, all hell could break loose, and that's why they're trying to keep it all quiet.

        War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

        by Valtin on Fri Feb 13, 2009 at 11:08:01 PM PST

        [ Parent ]

    •  We need a lawyer to write about this then (3+ / 0-)
      Recommended by:
      Valtin, kovie, jayden

      Anyone come to mind?

    •  i don't think valtin is bashing anyone (15+ / 0-)

      the obama DOJ has stated that the positions advocated in both jeppesen and al-haramain this week are the position of obama team. the DOJ spokesman for AG holder stated that quite clearly.

      In both cases, the obama team is defending governmental prerogatives of state secrecy rather than addressing the underlying substantive issues of FISA and torture. the effect in both cases will be a dismissal. then the underlying issues, and potential new information that could support prosecution of government officials will not be publicly disclosed in details not known before.

      2 of the 3 judges in the jeppesen case (i listened to oral arguments) were shocked and asked twice was this the position of obama admin.

      i worked hard to elect obama, i support him on most issues, but so far, in these cases, if you read the legal briefs and the reliable megamedia reports and listen to the oral arguments, obama is making is very difficult to argue that this was not clearly vetted. in fact, the judges asked the DOJ lawyer, was this "thoroughly vetted" by the obama admin.

      "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

      by Patriot Daily News Clearinghouse on Fri Feb 13, 2009 at 10:59:27 PM PST

      [ Parent ]

    •  I get my ` (3+ / 0-)
      Recommended by:
      Valtin, NonnyO, Publius2008

      from court documents and "hysterics" like Greenwald, Digby, emptywheel and BTD.

      And you're wrong, Jeppesen was a motion to DISMISS, not stay. It was intended to END that case and prevent ALL future ones from having a chance of succeeding. And this one was effectively a motion to dismiss because if granted, would have made it impossible for plaintiff to win. So I don't know where you're getting your "information" from. Jesus Christ we elected a president, not The One And Only Saviour Who Can Lead Us Out Of The Wilderness And Into The Promised Land!

      The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

      by kovie on Fri Feb 13, 2009 at 11:01:44 PM PST

      [ Parent ]

      •  I'm addressing the two issues (0+ / 0-)

        I stated in my comment where the word, "stay" was used and not "dismissal."

        You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

        by gchaucer2 on Fri Feb 13, 2009 at 11:10:20 PM PST

        [ Parent ]

        •  Where was "stay" used? (1+ / 0-)
          Recommended by:
          Valtin

          Jeppesen used dismissal. And dismissal is the obvious intent with Al-Haramain.

          The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

          by kovie on Fri Feb 13, 2009 at 11:23:16 PM PST

          [ Parent ]

          •  I'm not referring to Jeppeson (0+ / 0-)

            I'm referring to Al Haramain.  A pattern would be if all three instances were dismissals/refusal of documents -- they are not.  One is a dismissal -- two are stays.

            I'm not defending a cover-up of wiretapping or torture -- I am just looking at what the legal function of a stay means -- or in the Al Haramain case, what an interlocutory appeal means rather than an appeal from a final order or judgment.

            I tried an interlocutory appeal once -- it functioned as a stay because it went up to the state supreme court.  It was issue based not dismissal based.

            You'll never have a quiet world till you knock the patriotism out of the human race. - G.B. Shaw, "Misalliance"

            by gchaucer2 on Fri Feb 13, 2009 at 11:34:08 PM PST

            [ Parent ]

            •  Understood (2+ / 0-)
              Recommended by:
              Valtin, kurt

              But if granted, the IA would effectively destroy plaintiff's case and function as a dismissal by another name, no? The ultimate point of all of these appeals and motions is to prevent cases against the government from either going forward or having a chance of winning, which is really the same thing in terms of protecting government secrets and whoever committed these actions.

              The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

              by kovie on Fri Feb 13, 2009 at 11:42:01 PM PST

              [ Parent ]

  •  How much liabilty (5+ / 0-)

    do these cases open the govt. to? If the DOJ loses these cases, what happens? Iow, what consequences are they trying to avoid with this tactic? Legally speaking, what lies down this road?

    And if for instance, everyone they tapped illegally gets a settlement, how much would it cost?

    •  Believe me, the $ are the least of their worries. (6+ / 0-)

      This is about making sure some very high level people don't get prosecuted, IMHO.

      I survived the Bush Administration, 2000-2008

      by Publius2008 on Fri Feb 13, 2009 at 11:16:52 PM PST

      [ Parent ]

    •  I'm not sure how far ahead they are looking (5+ / 0-)

      I do agree with those who say Obama inherited a real mess. But the world-view of establishment politicians is to circle the wagons when feeling something big threatens the establishment. And the revelations that are pending threaten the Pentagon and CIA. Just look back to Abu Ghraib: almost all the politicians adopted the "bad apples" theory, waiting over four years until Levin and the SASC released their study showing that Rumsfeld and others at the top were responsible. Congress's response thus far (until the Leahy proposal) was silence.

      War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

      by Valtin on Fri Feb 13, 2009 at 11:19:25 PM PST

      [ Parent ]

      •  We need to just get it over with (7+ / 0-)

        Like removing the world's biggest and stickiest band aid from a hairy mess of a wound on its collective ass. Just get it over with, send away the people who need to be sent away (or let them take the Roman noble way out, if they like), and rid DC of some of its worst and least healthy human elements. It would not only be justice, but doing the nation a huge favor, like burying a rotting disease-bearing corpse.

        If Obama is trying to skirt this in the hopes that we can just move past it, he's an idiot and a coward. If he's trying to cover for them, then he's a traitor. And if it's jiu-jitsu, I just don't see it, and I don't trust him. This isn't some fucking Le Carre novel. Crimes were committed and we have a 200+ year process for dealing with it that only a fool believes would endanger national security. It's called the justice system. Let's use it.

        I'm guessing that part of this is to cover for some countries. Fuck 'em. If they broke the law, then we shouldn't be covering for them. Marc Rich times a zillion.

        Shit, no wonder he picked Holder!

        The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

        by kovie on Fri Feb 13, 2009 at 11:29:22 PM PST

        [ Parent ]

        •  So how do "we" make that happen? (2+ / 0-)
          Recommended by:
          Valtin, kovie

          Where are the calls to action? I stay informed and share what I learn, I get more pissed-off every day, and I have stubby fingers from calling and calling and calling Congresscritters over the past 24 months...

          Through all your faults and all my complaints, I still love you.

          by jayden on Fri Feb 13, 2009 at 11:46:12 PM PST

          [ Parent ]

          •  I agree (4+ / 0-)
            Recommended by:
            Creosote, kovie, jayden, Hens Teeth

            it's very frustrating because our power is limited right now. I suppose that's why I take out my frustration in writing these diaries, forums for those who already agree, and those who get to defend their man or party no matter what.

            I wish I had a crystal ball, but hopefully the effect of all this shouting and protest will be that someone in government will take up the cudgels and make the change/prosecutions happen.

            Maybe even Obama will change his mind/policy?

            Someone could Blackberry these kinds of things to him.

            The alternative to having something positive happen would be the slow deterioration of belief in any hope in the Obama administration, sinking under moral condemnation and cynicism

            War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

            by Valtin on Fri Feb 13, 2009 at 11:53:46 PM PST

            [ Parent ]

            •  Yeah, part of this is definitely palliative (1+ / 0-)
              Recommended by:
              Valtin

              But I believe that part is also action-oriented, by letting people know what's going on and convincing them that it's unacceptable, and creating a groundswell of effort to get the people in a position to do so to stop it. Lighting a candle to not only curse the darkness, basically, but also, well, to undarken it.

              The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

              by kovie on Fri Feb 13, 2009 at 11:57:41 PM PST

              [ Parent ]

          •  Continuing to call for congressional (1+ / 0-)
            Recommended by:
            Creosote

            and DoJ action, even the World Court or other countries' courts to get involved. Beyond that, I just don't know.

            The liberal soul shall be made fat. He who waters shall be watered also himself. (Proverbs 11:25)

            by kovie on Fri Feb 13, 2009 at 11:54:49 PM PST

            [ Parent ]

    •  each case is different (4+ / 0-)
      Recommended by:
      Valtin, buhdydharma, kurt, jayden

      jeppesen is filed against the aircraft company, not the government.

      the al-haramain is filed against government, asking $1 million in punitive damages, and some cases ask for nominal damages like $1.

      i'm not sure how many cases are still active. many were dismissed during bush term.

      my guess is that the government does not want trial on these issues of torture and FISA crimes because then more detailed information of what bush did would become public and then more americans may push for special prosecutor. that is, the trials would be kind of a de facto investigation of their crimes based on the evidence presented at trial and sworn testimony.

      "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

      by Patriot Daily News Clearinghouse on Fri Feb 13, 2009 at 11:36:44 PM PST

      [ Parent ]

      •  al-Masri was dismissed, but none of the NSA cases (2+ / 0-)
        Recommended by:
        Valtin, limpidglass

        ...all of the telco lawsuits are still alive, to some extent.  The constitutionality of the PAA has not yet been decided on.  Additionally, EFF, CCR, and the ACLU have sued the government and officials.  

        On the subject of public knowledge of past crimes that's largely already moot.  We mostly know what's transpired, through reading non-classified information, making educated guesses, contextualizing official statements, and (most importantly) listening to those who were on the inside.

        The problem is not that we don't know what happened - it's that without being verified and adjudicated we will have two levels of History as we move on.  "Official history" will be a smaller set of "that which we all know."

        •  it's not the public knowledge that counts (0+ / 0-)

          but evidence. there can be no prosecutions for crimes based on speculation or educated guesses.

          If there is civil litigation, we can get evidence that can be used in criminal cases.

          "Water and air, the two essential fluids on which all life depends, have become global garbage cans." -- Jacques Cousteau

          by Patriot Daily News Clearinghouse on Sat Feb 14, 2009 at 11:36:57 PM PST

          [ Parent ]

  •  I would advise the president (5+ / 0-)
    Recommended by:
    Valtin, NonnyO, jayden, Hens Teeth, SPD

    against trying to pick a fight with the courts. Even the Bush administration lost a few rounds in trying to shove their doctrine of unlimited detention--the Supreme Court (the Roberts Supreme Court!) struck down part of the Military Commissions Act.

    Not only is this a fight he is making for all the wrong reasons, it is a fight he will lose.

    "In America, the law is king." --Thomas Paine

    by limpidglass on Fri Feb 13, 2009 at 11:24:16 PM PST

    •  Vaughn Walker and the 9th... (2+ / 0-)
      Recommended by:
      Valtin, kurt

      ...want to investigate.  It was always Bush's DoJ that had been holding them up.  Obama's DoJ stops resisting, and he'll have no "fight with the courts" on his hands!

      In short, yes, I agree.  Obama should allow courts to investigate crimes and exercise their status as a co-equal branch.

  •  He's trying to enjoy some of the extended powers (6+ / 0-)

    Bush granted himself over the last eight years.

    However, if it was wrong then (and it was), it's not going to suddenly become right because a Democrat is doing it.

  •  PLEASE STOP POSTING THESE SANCTIMONIOUS (2+ / 0-)
    Recommended by:
    marabout40, Ilikepie

    ARM-CHAIR QUARTERBULLSHIT DIARIES.  You've already established a pattern of obstruction?!?  THE MAN HAS BEEN IN OFFICE THREE GODDAMNED WEEKS!!!

    Blagojevich/Palin '12.

    by fou on Fri Feb 13, 2009 at 11:45:07 PM PST

  •  The King of Hungary Visited One of His Prisons (4+ / 0-)
    Recommended by:
    Valtin, kurt, NonnyO, Ilikepie

    unannounced.  He was said to often make visits unannounced.

    The king asked the warden if he might talk to some of the prisoners individually.  The warden was hardly in a position to deny anything the king asked for.

    After talking to a number of prisoners, the king came to the cell of a Gypsy.

    "Why are you here?," asked the king.

    "I stole a horse," answered the Gypsy.

    "You didn't really steal the horse did you?" asked the king.

    "Yes I did," responded the Gypsy.

    "Warden!" yelled the king.  "Get this man out of my prison immediately.  We can't have such a scoundrel corrupting all the innocent men in my prison."

    The wise old king understood time was of the essence.  There was no time for reviews and hearings and discussions before harm was done to innocents.

    Others often do not understand such a simple thing.

    Best,  Terry

  •  Good diary. The world sees these acts... (3+ / 0-)
    Recommended by:
    sberel, Valtin, Hens Teeth

    and realizes that not much changes on the ground.

    Who are we to tell them to change what they do in terms of human rights?

  •  Oops! Sorry. I apparently clicked on the wrong (0+ / 0-)

    link. I was looking for Dkos.

    Enjoy the Obama bashing!

    "I can't expect to live in a democracy if I'm not prepared to do the work of being a citizen." Dallasdoc

    by marabout40 on Sat Feb 14, 2009 at 06:10:23 AM PST

  •  On a slightly different tack, (1+ / 0-)
    Recommended by:
    Valtin

    I'd like your opinion about the Leahy/Specter/Feingold/Kennedy State Secrets Legislation.  

    Looks to me like this would take care of part of the issue if passed.

    •  The ACLU (1+ / 0-)
      Recommended by:
      rhutcheson

      is supporting their efforts. Without reading it (I'm no Congressperson, rhutcheson, who votes and voices opinions without reading a document), I can't give a decent opinion yet. Mary, a staunch civil liberties commenter over at EW/FDL, said there might be some problems with it.

      I've learned that grand words and concepts can often mean little, if you don't read the fine print.

      War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

      by Valtin on Sun Feb 15, 2009 at 02:21:02 PM PST

      [ Parent ]

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