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News and Opinion

Ortiz Abuses Authority Again, Slapped Down By Judge

United States Attorney Carmen Ortiz, infamous for being the overzealous prosecutor in the Aaron Swarz case, was slapped down in court this week for overreach.

Lanny Breuer Now Blames 94 US Attorneys for Immunizing Banksters

Lanny instead adopted a new excuse to deny responsibility for letting the most destructive criminals in the country walk free (note, Lanny appears to be ignorant of SarBox regulations that wouldn’t even require this kind of intent):

“I understand why people are upset,” Breuer said. “But we have 94 U.S. attorneys and they don’t report to me. Not one of them determined that there was a criminal case to be had. These are very complicated cases and they were just simply, on the merits, not cases that could be brought criminally.”

Breuer said Wall Street executives would have been prosecuted if the investigators could have proved criminal intent. “I have the same DNA in all of these cases,” Breuer said. “It’s just not plausible that in one area we would be overly scared and in all the other areas we would be aggressive.”

Really weird story.

The case of the mystery button began like a story about a poltergeist. On Monday, a preliminary hearing in the military commission trying Khalid Sheikh Mohammed and other accused 9/11 conspirators convened at Guantánamo. The courtroom is set up so that spectators behind sound-proof glass can listen to an audio feed with a forty-second delay. As Carol Rosenberg of the Miami Herald describes it, “A red emergency light spins in court when a censor at the judge’s elbow hits the mute button to prevent someone from spilling national security secrets.” At just before 2:30 P.M., David Nevin, one of the defense lawyers, who was addressing a brief having to do with C.I.A. secret prisons, said he understood that “we are going to do this in a 505 and that some portion of this will turn out to be closed or secret.” As he pronounced “secret,” the light began to flash and white noise filled the audio feed, as if it had been a trigger word—even though neither the security officer or the judge had touched the button. That’s when the judge, James Pohl, realized that he was not, as he’d thought—given the trappings and the job title—running his own courtroom. Some unknown person in another room was, and was apparently able to turn the audio off or on, or, for all anyone knew, pipe in the soundtrack to “Zero Dark Thirty.”

Judge Pohl, who is also an Army colonel, was confused and angry.

“If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I—there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” the judge said.

Will Guantanamo Judge Reveal Identity of Monday’s “Big Brother” Censor?

Carol Rosenberg in the Miami Herald and Peter Finn in the Washington Post recount a very strange sequence of events during yesterday’s proceedings in the Guantanamo military commission that is attempting once again to “try” the group of five prisoners that includes Khalid Sheik Mohammed for their conspiracy in bringing about the 9/11 attacks. As Rosenberg recounts, the judge was enraged when a portion of the proceedings was censored by someone outside the courtroom. The judge appeared to have no knowledge beforehand that anyone besides himself or his security officer could control the censoring process:

John Brennan’s Kangaroo Court

But it’s worth noting that this is the second time in a week that CIA has managed to dictate our legal process. Last Friday, John Kiriakou was sentenced for indirectly revealing to these same defense lawyers the identity of two of their client’s interrogators (one who actually engaged in the torture itself). DOJ originally decided that knowledge, by itself, did not merit charges. But CIA appealed to … John Brennan, and Patrick Fitzgerald was brought in and ultimately Kiriakou was delivered up as an example to cow others who might expose details of the torture program.

And then yesterday, you had a lawfully cleared defense motion being discussed in court, and CIA overruled the determination the trial judge had made, and ensured that journalists could not hear even that unclassified motion. Judge Pohl has deferred the discussion about preserving the black sites as evidence until next month, and it’s not clear whether the defendants or the journalists will be permitted to attend that hearing.

We shall see, next month, whether the CIA has taken over this judicial determination, as they did the judgement on the John Adams Project.

Who Decides the Laws of War?

UNTIL recently, no uniformed lawyer was viewed by the Obama administration with greater favor than Brig. Gen. Mark S. Martins, the scholarly chief prosecutor of the military commissions system who is leading the case against Khalid Shaikh Mohammed and four other Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001.

A Rhodes Scholar who graduated first in his class at West Point and earned a Harvard law degree alongside a young Barack Obama, General Martins served for five years in Iraq and Afghanistan, helped review detainee policies for President Obama in 2009, and was handpicked to reboot commissions in the hope that his image and conduct would persuade the world to respect the outcome of the Sept. 11 case — prosecutors are seeking death sentences — as legitimate.

But next week, when General Martins returns to public view at a pretrial hearing in the Sept. 11 case, he may appear to have gone rogue. He has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?

Guantánamo Lawyers Seeking 48-Hour Visits

FORT MEADE, Md. — Defense lawyers for Khalid Shaikh Mohammed and four others accused of being accomplices in the terrorist attacks of Sept. 11, 2001, asked a military tribunal judge in Guantánamo Bay, Cuba, on Tuesday to let them stay in prison with their clients for 48-hour periods every six months. But military prosecutors called that request unreasonable, saying the defense should be allowed only a single two-hour visit.
The requested visit was one of several issues raised at a pretrial motions hearing that focused on information that could become a central focus if the defendants are eventually convicted and they face the possibility of a death sentence. [...]

“If we get to sentencing, we need to articulate mitigating factors, particularly the defendants’ adaptions to conditions of confinement,” said Cmdr. Walter Ruiz of the Navy, a defense lawyer for one of the detainees, Mustafa Ahmed al-Hawsawi.


Colonel Pohl also put off consideration of another high-profile motion: a defense request that he order the government to preserve evidence at any Central Intelligence Agency “black site” prison where their clients were held and interrogated for several years.


But the motion over the issue of secret C.I.A. prisons may raise a new wrinkle, because the chief prosecutor, Brig. Gen. Mark S. Martins, has said that he will not use evidence “polluted” by torture in the trial and that he has enough evidence from sources other than the C.I.A. The defense wants to gather black-site information in order to argue at any sentencing that their clients should be spared the death penalty.

Why Palestine Should Take Israel to Court in The Hague

LAST week, the Palestinian foreign minister, Riad Malki, declared that if Israel persisted in its plans to build settlements in the currently vacant area known as E-1, which lies between Palestinian East Jerusalem and the Israeli settlement of Maale Adumim, “we will be going to the I.C.C.,” referring to the International Criminal Court. “We have no choice,” he added.


Israel has categorized military clashes with the Palestinians as “armed conflict short of war,” instead of the police actions of an occupying state — thus freeing the Israeli military to use F-16 fighter jets and other powerful weaponry against barely defended Palestinian populations in the West Bank and Gaza Strip.

It has designated individuals who fail to leave a targeted area after a warning as “voluntary human shields” who are therefore subject to lawful attack, despite the fact that warnings may not be effective and escape routes not clear to the victims.

And it has treated civilian employees of Hamas — including police officers, judges, clerks, journalists and others — as combatants because they allegedly support a “terrorist infrastructure.” Never mind that contemporary international law deems civilians “combatants” only when they actually take up arms.

All of these practices could expose Israeli political and military officials to prosecutions for war crimes.

Israel hits target in Syria border area: sources

(Reuters) - Israeli forces have attacked a target on the Syrian-Lebanese border overnight, a western diplomat and a security source said on Wednesday, at a time of growing concern in the Jewish state over the fate of Syrian chemical and conventional weapons.
The sources, who declined to be named because of the sensitivity of the issue, had no further information about what might have been hit or where precisely the attack happened.

Earlier, the Lebanese army reported a heavy presence of Israeli jets over its territory throughout the night.

Israel attacks target in Syrian territory, western sources say
Report of attack comes soon after Lebanese army says IAF fighter planes flew over Lebanon in three separate missions; Israeli officials have repeatedly warned this week that Syrian chemical weapons could be falling into the wrong hands.

The Israel Defense Forces refused to confirm or deny the report. "We do not comment on reports of this kind," an IDF  spokeswoman said.


On Sunday, Prime Minister Benjamin Netanyahu warned his cabinet ministers of the risk that chemical weapons from Syria could be falling into the hands of Hezbollah in Lebanon.

"It is necessary to look at our surroundings, both at what is happening with Iran and its proxies, and what is happening in other arenas - lethal weaponry in Syria, which is steadily breaking up," Netanyahu said during the weekly cabinet meeting in Jerusalem.

The commander of the Israel Air Force, Major General Amir Eshel on Tuesday issued his own warning over the volatility of Syria and its weapons. Addressing the international space conference in Herzliya, Eshel described Syria as a "country falling apart", adding: "Nobody has any idea right now what is going to happen in Syria on the day after, and how the country is going to look. This [sectarian crisis] is happening in a place with a huge weapons arsenal, some of which are new and advanced, and some of which are not conventional."

Now that the elections are over in both countries, will the daily drumbeat and pressure on Obama for more war and supposed humanitarian intervention begin again?  This opinion piece appears to be putting pressure on Congress, perhaps because whoever wants this intervention feels that the Obama administration can't be pressured as easily anymore.
Has Obama administration gone wobbly on Syria?’

Assad must have smiled. Washington had gone wobbly on chemical weapons. With the deterrent value of the president’s remarks in question – and one unconfirmed report that Syria used a chemical agent in Homs on December 23 – the chemical specter remains. This raises the key question: Would Obama really stand by if the Syrian government gassed thousands of its citizens?

Before we answer, let’s hit the pause button for a reality check: Are chemical weapons really more heinous than the bombs that have already killed some 60,000 Syrians. This continuing mayhem has not justified military intervention so far. Why would chemical weapons be different?

Obama clearly has the authority to act. If he wishes to use force, under the 1973 War Powers Resolution, he can do so for at least 60 days without congressional approval.

But to avoid Congress now would be a mistake. The flummoxed administration needs another set of eyes to determine what is in the national interest. Congress can do this, assuming it can act with independence and reverse the legacy of deferring to the executive branch on matters of war and peace. Granting presidents, for example, broad authority to use military force without proper vetting – as the Gulf of Tonkin and Iraq war resolutions illustrated – ill-served the country.

To this end, Congress should reconvene the hearings begun last session. This time, however, it must press for details about the administration’s assumptions about intervening or not. In addition, all the hearings should be public – not secret, as the administration prefers. This will give the American people confidence in the decision-making.

MF Global’s Bankruptcy Nears a Happy Conclusion

Like thousands of investors and farmers who had their savings with MF Global, Mr. Desai lost his money in the brokerage firm’s chaotic final days. Regulators discovered that $1.6 billion was trapped in a web of improper wire transfers, a stunning breach that sent federal investigators scrambling to build a case.

On Thursday, a bankruptcy court will review a proposal that would return 93 percent of the missing money to customers like Mr. Desai. And the trustee who has submitted the proposal, James W. Giddens, has quietly identified a way that, if sent to the judge and approved, could plug the remaining shortfall for customers in the United States, according to people involved in the case.

The broad push to make MF Global customers nearly whole, a goal now surprisingly within reach, is a remarkable turnaround from the firm’s 2011 bankruptcy filing when such a recovery seemed impossible.

“I’m surprised that, magically, the money has shown up,” said Mr. Desai, a software account executive who, like most customers in the United States, has only 80 percent of his money. “I feel very relieved.”


And Jon S. Corzine, the former New Jersey governor who headed MF Global when it collapsed, can now claim some small degree of vindication. The European bonds at the center of a $6.3 billion bet by Mr. Corzine fully paid out when they matured in recent months.

Europe’s robust financial-transactions tax

The details of Europe’s new financial transactions tax won’t be made public for a few weeks, but the FT’s Alex Barker has seen a draft, and it looks impressively robust. The tax is being implemented by 11 countries, including most importantly Germany and France, and it’s going to be levied at two levels: 0.1% on securities trades, and 0.01% on derivatives trades. It’s also going to be very difficult to dodge: any trader whose institutional headquarters is in one of the 11 countries will have to pay the tax, as will all transactions taking place in those countries, and all transactions involving securities issued in those countries.

The tax will have two main purposes. The first is to raise substantial tax revenues on the order of $45 billion per year; the second is to discourage financial speculation. I’m hopeful on the former, but less so on the latter.


Right-wing judicial activism has been ascendant in recent years. Five years ago, in the case of District of Columbia v. Heller, the Supreme Court, rewrote decades of Second Amendment jurisprudence to thwart local legislators who passed gun control laws. Three years ago, in Citizens United, a majority of the Justices overturned decades of precedent to deregulate modern campaign financing. But even these decisions, and others like them, pale beside last week’s extravagant act of judicial hubris by the United States Court of Appeals for the D.C. Circuit. There, in Canning v. National Labor Relations Board, three federal judges revealed themselves as Republican National Committeemen in robes.

The facts of the case were straightforward. The N.L.R.B. is supposed to have five members, and it cannot act without a quorum of three. After Republicans in the Senate obstructed the nominations of President Obama’s three nominees to the board (a fact not mentioned, revealingly enough, in the opinion), the President made so-called recess appointments to fill the vacancies.

I've been watching this... sort of a movement, in some news media companies, about new design concepts for news sites.  Some that are in the middle of it all have launched sites from scratch and others are doing makeovers.  New Republic is the latest one to do a facelift and it's more than a facelift (and it's pretty nice, imho).  There are some new paradigms involved, but not as earth shattering as it comes off in the talk about the new craze, imho.  I watch with interest.  I think it might just be a fad but some real change might come out of it too and that would be good thing in some ways because the focus seems to be on user experience and mobile.  But what makes a news organization good is still the content and the trend toward cost cutting is, as far as I know, still there.  Content is king.  And while the advertising dollars are definitely moving to the internet, it's still apparently really hard to run a profitable news magazine.  (Also of interest, David Dayen published an article in the New Republic during the past couple of days).  Like many of us, I still associate the New Republic with Joe Lieberman.  But aside from the new design movement, maybe a good news magazine from the real left could emerge here instead of a neoliberal rag?  Remains to be seen. Again, I watch both aspects with interest.
Unsolicited advice for New Republic owner Chris Hughes

For more than a century, rich guys who think they’re smarter than the rich guys who came before them have been buying money-losing publications under the impression that by spending more money than their deep-pocketed predecessors, they’ll turn the red ink black. This tradition, whose ranks include such modern vanity moguls as Mortimer Zuckerman (Atlantic, U.S. News & World Report), Sidney Harman (Newsweek), Arthur L. Carter (Nation, New York Observer), Philip Anschutz (San Francisco Examiner, Weekly Standard), David Bradley (Atlantic, National Journal), Michael Bloomberg (Bloomberg Businessweek), Richard Mellon Scaife (Pittsburgh Tribune-Review), and Martin Peretz (New Republic), gained a new adherent about a year ago when Chris Hughes, a Facebook co-founder whose net worth currently bounces around in the vicinity of the half-billion mark, purchased the New Republic.

Since then, Hughes has followed the century-old script to a T, wheel-barreling a load of cash into the magazine, replacing the top editor with the former top editor, adding staff, opening a New York office, making plans to move his Washington staff to a nicer home, and ordering a makeover of both the magazine and website. This week, those redesigns debuted, with the magazine getting slicker and thicker, and the website receiving a sumptuous transformation that makes the competition look like they’re squatting on GeoCities sites.


Perhaps the Hughes Republic could turn a quarterly profit now and again if it were to ape the Atlantic and buttress the magazine’s content with tons of topical copy by inexpensive writers, enter the events racket, start a “digital consultancy,” and launch a business site. But as an experienced advice-giver to vanity moguls, I must warn Hughes against trodding this path, even though he’s committed himself to hosting events and already helped chair a New Republic panel.

And an article from the new New Republic.
The L Word Lives
Is it safe to say "liberal" again?

For more than twenty years, the word “liberal” seemed to have disappeared from the political world. But President Obama’s speech appears to have revived it—even though the word did not appear in his inaugural address.

In the aftermath of his speech, "liberal" was suddenly everywhere—by the right (with derision) and by the left (with relief). Most interestingly, the word appeared prominently in the mainstream news outlets that have typically avoided using a term that had evolved from being a basic political descriptor to a loaded piece of jargon used as an epithet by Republicans as avoided as a liability by Democrats.


If anyone found the usage inappropriate, they didn’t make much of a fuss. What made liberalism alive was not the word, but the many issues that liberals have waited for decades to hear from a president:  inequality, poverty, illegal immigration, gay rights, and many other liberal promises that have been ignored or overlooked for years. Obama may not have said “liberalism,” but he made it possible for others to start talking about it again. In his inaugural address, he painted an America that has not been seen in many years[...]

Cass Sunstein. The irony, it burns.
Obama, FDR and the Second Bill of Rights

As the actions of his first term made clear, and as his second inaugural address declared, President Barack Obama is committed to a distinctive vision of American government. It emphasizes the importance of free enterprise, and firmly rejects “equality of result,” but it is simultaneously committed to ensuring both fair opportunity and decent security for all.

In these respects, Obama is updating Franklin Delano Roosevelt’s Second Bill of Rights. To be sure, his second term has barely started, and his precise place in history remains to be established. Yet we can’t appreciate the arc of American politics, or the nation’s current situation and prospects, without understanding the Second Bill.


It is important to be clear about what FDR meant. He did not propose to amend the Constitution. He did not think that the Supreme Court should enforce the Second Bill of Rights. He believed in free markets and free enterprise; he had no interest in socialism. The nation’s wheelchair-bound president hardly thought that the national government could eliminate sickness, accident, unemployment or homelessness. He did not mean that every American was necessarily entitled to a job; he did mean that the national government would commit itself to promoting economic conditions that would reduce unemployment. This was a political speech, not a lawyer’s document.

Roosevelt’s purpose was to give a fresh account of the nation’s defining aspirations. With the idea of security at its foundation, and with an insistence on fair opportunity, the Second Bill was meant to specify the goals of postwar America, hardened by its emergence from an economic crisis and its imminent victory in World War II. With the Second Bill of Rights, the leader of the Greatest Generation sought to cement his legacy. And while Roosevelt said that it was Congress’s responsibility to carry out the Second Bill, of course it did not do so, though various presidents and Congresses have taken significant steps (including Medicare and Medicaid) in this direction.

Why 'Zero Dark Thirty' Crashed Just Outside the Compound

At last night's SAG Awards ceremony, Ben Affleck's Argo was given the Best Cast prize, all but ensuring, in many people's minds, that the film will win the Best Picture trophy at the Oscars next month. The last SAG award of the night is usually a good predictor of that Oscar category — they've matched up six out of the last ten times. That Argo, an almost universally well-reviewed film, is getting this kind of awards treatment isn't exactly a surprise, but its late-season trouncing of another film certainly is. Meaning, what happened to Zero Dark Thirty?


It turns out, the film was just too controversial. With pundits and bloggers debating Zero Dark's stance on torture — does it make a correlation between "enhanced interrogation" and the discovery of bin Laden, or is it simply realistically depicting something that did happen somewhere, at some point? — the praise for the film's artistic merits began to get lost. People either forgot that they liked the movie on technical grounds or simply were afraid to say it, at risk of wading into the heated political debate and being excoriated for liking a problematic movie. It became significantly less trendy to like Zero Dark Thirty in the weeks leading up to the Golden Globes, and the film has suffered because of it. No one is turning tail and saying that it's a bad film, it's just become something vaguely taboo. You can like it, but not too much.

Blog Posts and Tweets of Interest

Evening Blues

Lest we forget

Aaron Swartz Was Going Home With a Slap On The Wrist. Then The Feds Got Involved

KSM, Manning, Kiriakou: Secret Court Proceedings-Audio/Visual Feed Cut at KSM Trial

MARVIN GAYE & TAMMI TERRELL - Ain't Nothing Like the Real Thing
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