Bits & Pieces

It seems that various incidents involving reality TV have recently been causing news. On the first was the entire balloon boy incident, when an aspiring reality TV “actor” sought publicity by faking a purported accidental balloon flight by his son. This triggered a large emergency rescue effort, putting rescuers of a non-existent threatened child in danger and costing money.

Now, an aspiring reality TV show couple successfully crashed a White House official state dinner.  The couple shook President Obama’s hand while the President stood immediately next to the Prime Minister of India. Pictures of the couple at the event are shown on the wife’s Facebook page.  Needless to say, this was a huge failure by the Secret Service, but it is also an outrage that, apparently for the purpose of entertainment, the couple in question intentionally breached Presidential security.

It is important, in this case, that the couple be prosecuted fully.  Further, anyone who knowingly aided the breach should also be charged if possible. Reality TV “personalities” cannot be above the law. Also, it appears that Bravo (aka NBC) may also have been involved.

Mr. and Mrs. Salahi, who are known in the area to have a taste for polo and fine wine, are aspiring reality-show celebrities. For months, the couple have been trailed by camera crews with the cable channel Bravo, as it prepared for a new show, “The Real Housewives of D.C.”

Seemingly distancing itself from the Salahis’ actions, Bravo said Friday that it would not comment about “ongoing investigations.” Earlier, the channel said that while its cameras were filming the Salahis before the dinner, producers were told by the couple that they had been invited to it.

Update: More here, from the New York Times’ television critic:

Bravo has not yet said it would drop the dashing blond Mrs. Salahi; Larry King has already booked her for his show. The Washington social climbers had a plan, even if it was lunatic and dangerous. So did the father who pretended that his son was trapped in a runaway balloon, and in much the same reality-show fevered way, so did Jon and Kate Gosselin when they ripped their marriage apart on camera.

Richard and Mayumi Heene, the parents of Falcon, the so-called Balloon Boy, were not as lucky as the Salahis. They briefly held cable news in their thrall last month, but after the local Colorado sheriff concluded that the 50-mile balloon chase was a fake, Mr. Heene pleaded guilty to a felony charge of falsely influencing the authorities and faces jail time. But even that may turn out to be worth it to the Heenes, amateur storm chasers who appeared twice on ABC’s reality show “Wife Swap.”

Update 2: Now they have cancelled their Larry King appearance and are taking bids for their first TV interview. Shame on whoever pays them a dime.

For those concerned about the likelihood of success in the upcoming 9/11 prosecutions in New York, you should understand that the DOJ believes it can be successful.  For example, the United States Department of Justice, in a June, 2006, report, outlined its overwhelming success in prosecuting terrorism suspects in the United States courts. I would encourage reading at least the Executive Summary section of the report, which includes this:

Our international terrorism and terrorism-related cases draw on the full range of criminal charges available in the federal criminal code, according to the facts and circumstances of each case. The material support statutes have been a cornerstone of our success in terrorism financing cases as well as in a wide range of other cases addressing all types of support to terrorism. Our effective use of these statutes has allowed us to intervene at the early stages of terrorist planning, before a terrorist act occurs. We also have effectively used other terrorism and weapons of mass destruction statutes, and have drawn on more general statutes, such as immigration fraud and false statement offenses, where they apply in terrorism investigations. These statutes of more general application have been so important to our disruption efforts that U.S. Attorneys’ Offices around the country have undertaken numerous initiatives to expand their use of these statutes to further our prevention strategy.

Our successful prosecutions have produced cooperating defendants who have, in turn, provided intelligence information to investigators, prosecutors and national security officials, leading to further investigation, disruption and prosecution. This is one of a number of classic criminal enforcement approaches discussed below. Cooperation with our foreign partners has led to counterterrorism successes in foreign courts as well as in our own, and we discuss some of these cases in which such cooperation has been critical to success.

As for those concerned about the defendants making a spectacle out of the trial, and using it as a platform, I would ask why you believe that the statements from such individuals are more powerful than a presentation of the evidence against them in open court? Is our country (or our system of criminal justice) so fragile that it cannot stand strongly against the words of killers?

Further, compare the results obtained in terrorism cases in the courts versus the record of military convictions as of November 2008.

Although some have defended the commissions as an efficient form of military justice, their track record in prosecuting terrorism cases has been abysmal. Since their establishment, the commissions have concluded only three cases, two after trials and one based on a guilty plea. During the same time period, the federal courts have tried more than 107 terrorism cases, obtaining 145 convictions. Several defendants have been sentenced to life in prison.

The Obama administration has announced that Federal prosecutors will no longer go after medical marijuana users or distributors. Finally, some action to reflect the will of the voters.

People who use marijuana for medical purposes and those who distribute it should not face federal prosecution, provided they act according to state law, the Justice Department said on Monday in a directive with far-reaching political and legal implications.

Meanwhile, the City of Los Angeles is looking to begin a big crackdown on distributors.

Update: And yesterday, a judge ruled that the City of Los Angeles could not impose a moratorium on new marijuana shops. And here is the full-text of the DOJ Memorandum.

Several former directors of the CIA have asked the Obama administration to drop the Department of Justice inquiry into detainee torture. Why?  They give three reasons: (1) charges should not be brought based on a change in administration, (2) continuing the investigation would help Al Qaeda, and (3) the results of the investigation may cause foreign intelligence agencies to distrust the US to keep secrets.

Each of these reasons is no reason at all. In terms of the new administration, it seems pretty clear to me that the prior administration’s basis for approving torture was incorrect and immoral. One reason administrations change in a democracy is to allow faulty policies to be changed. In this case, given the extreme secrecy of the Bush Administration, digging in to find the true story of what happened is central to helping the country avoid such vile actions in the future.

How it would help Al Qaeda to apply American justice to American citizens is beyond me. And even if prosecutions to help Al Qaeda, restoring the country to a sound moral footing is worth the cause. Any damage done can be laid at the feet of those who approved the American use of torture.

Finally, I am more interested in the US citizens being able to trust our government follows the law even if that means some disclosure clandestine interactions with foreign governments (who presumably have their own torture problems to worry about, at least if they are governments to whom we moved detainees for such purpose).

One approach that might help mitigate the issues raised by the former CIA directors would be to re-focus the investigation away from the front line interrogators and dig in to the real issues as to who devise, and ordered, the use of torture at the higher levels. In some respects, the front line operations are less important going forward that what sort of flawed decision-making allows the entire mess to happen.

Three judges on the Ninth Circuit Court of Appeals have ruled that weeks-long detentions of innocent people as “material witnesses” violates the Constitution. From the New York Times:

In the decision, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, was sharply critical of the Bush administration’s practice of holding people it suspected of terrorism without charges, as material witnesses.

And from the decision itself:

We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

As a result, John Ashcroft may face personal liability. Interestingly, two of the judges on the panel were appointed by George W. Bush, and the third by Ronald Reagan. It is unlikely these judges are insensitive to the claims of the government. Full text of the decision, al-Kidd v. Ashcroft, is here and it graphically outlines the lack of due process and undue harassment under an organized federal program.

The wheels of justice move slowly, but there are hopeful signs that constitutional sanity is returning.

Eric Holder is going to appoint a career prosecutor to investigate special prosecutor to examine whether Bush administration interrogations conducted by the CIA were legal. Good for him. But the real question is whether the prosecutor will have the authority to examine not only (or even primarily) the front-line interrogators, but whether the prosecutor is free to climb the ladder of authority should his investigation warrant it, even if the climb is to the highest levels in the Bush administration. The leadership clearly set the tone and directed a strained legal interpretation that was the basis of the programs

Update 2: Andrew Sullivan correctly feared precisely this result. And Glenn Greenwald is properly outraged.

The way to correct mistakes is to fully understand what happened and why. Then lessons can be drawn to avoid them in the future. The ethics office of the Department of Justice has recommended just such a course of action in the case of claims of detainee torture as part of the so-called war on terror, according to the New York Times.

The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

Karl Rove was knee deep in the US attorneys firing scandal from 2006. And it is now proven by the release of testimony and emails according to the New York Times.  Another Bush Administration perversion of the justice system.

Aides to former President George W. Bush have asserted that the Justice Department took the lead in the dismissals, which set off a political firestorm that lasted months. Mr. Rove played down his role in the firings in a recent interview and in closed testimony last month before Congressional investigators.

But the documents, released by the House Judiciary Committee after a protracted fight over access to White House records and testimony, offer a detailed portrait of a nearly two-year effort, from early 2005 to 2007, by senior White House officials, including Mr. Rove, to dismiss some prosecutors for what appear to be political reasons.

Compare the emails that were just released with the following. TPM highlights this quote from Press Secretary Tony Snow in March, 2007 regarding the firings:

No, I think — again, what the President has — the Department of Justice has made recommendations, they’ve been approved. And it’s pretty clear that these things are based on performance and not on sort of attempts to do political retaliation, if you will.

John Yoo has a piece in today’s WSJ. I won’t quote it, except to say it is the same old argument, louder and with even less substance. To wit, the President of the US has unlimited power to do anything that the President decides is necessary to protect the country, notwithstanding statutes or even apparent Constitution provisions to the contrary.  In other words, an imperial presidency.

The Anonymous Liberal ably dissects and refutes each section of Yoo’s argument.

In today’s op-ed Yoo finally gets around to a subject that he didn’t bother to mention in his original opinion, the relevance of the Youngstown case. In an almost childish bit of sophistry, Yoo asserts that “Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war.” Needless to say, this is an interpretation of Youngstown shared by precisely no one. Youngstown explicitly involved a conflict between the president’s power to direct the Korean War and Congress. In every case since then, the Supreme Court has applied the Youngstown framework to presidential claims of Article II authority. In the recent Hamdan case, the Court relied on Youngstown in striking down the Bush administration’s military commissions. Suggesting that Youngstown was about a “labor dispute” is like suggesting that Marbury v. Madison was about a judicial appointment. It entirely misses the point of the case. Yoo writes:

Moreover, earlier Justice Departments — reaching across several administrations from both parties — had likewise concluded that Youngstown did not limit the president’s legitimate conduct of foreign affairs and national security policy.

This is just not true. There are undoubtedly some OLC opinions, particularly ones that address the War Powers Resolution, that conclude that some provisions of that Act go beyond even the broad Congressional authority recognized in Youngstown, but no administration (before the Bush administration) ever claimed that FISA was such a statute. And if you’re going make that rather audacious argument, you at least have to discuss and distinguish Youngstown and its progeny, something Yoo did not even attempt to do in his opinion.

The Bush administration not only invaded the privacy of telecommunications in apparent violation of the Constitution, but the wiretaps were not even partiularly helpful in combatting terrorism.

Most intelligence officials interviewed “had difficulty citing specific instances” when the National Security Agency’s wiretapping program contributed to successes against terrorists, the report said.

While the program obtained information that “had value in some counterterrorism investigations, it generally played a limited role in the F.B.I.’s overall counterterrorism efforts,” the report concluded. The Central Intelligence Agency and other intelligence branches also viewed the program, which allowed eavesdropping without warrants on the international communications of Americans, as a useful tool but could not link it directly to counterterrorism successes, presumably arrests or thwarted plots.

It appears this is was more an exercise in establishing unfettered Presidential power that a serious anti-terrorism tool. And the report warns that the program may have tainted criminal terrorism prosecutions.

The Justice Department IG found that the program played only a “limited role in the FBI’s overall counterterrorism efforts,” but warned that the information collected by the program could have tainted criminal prosecutions. It recommended that the Justice Department look hard to see if there was information collected by that program that should have been or should be turned over to defendants in terrorism cases. By law, prosecutors have to give a defendant all relevant information about their case, including any evidence that helps a defendant prove they are innocent.

It appears that there may finally be some progress on investigation into Bush’s warrantless wiretapping program. There is an unclassified summary written by five inspectors general, according to the Washington Post.

The inspectors general from the Departments of Justice and Defense, as well as the CIA, the NSA and the office of the Director of National Intelligence, said they reviewed thousands of documents and interviewed more than 200 people in connection with the report, including Bush era officials John Negroponte, who served as director of national intelligence, National Security Agency Director Michael V. Hayden, Secretary of Defense Donald Rumsfeld and Attorney General Alberto Gonzales.

But other key figures such as Bush White House Chief of Staff Andrew Card, former Attorney General John D. Ashcroft and former CIA director George Tenet declined interview requests, investigators said. The inspectors general lack the authority to compel them to talk.

Update: Here is a link to the full unclassified report.

According to an Alaskan FBI spokesman, as reported in the LA Times, there is no investigation by the FBI of Sarah Palin.

“There is absolutely no truth to those rumors that we’re investigating her or getting ready to indict her,” Special Agent Eric Gonzalez said in a phone interview Saturday. “It’s just not true.” He added that there was “no wiggle room” in his comments for any kind of inquiry.

The New York Times is not always timely, but they finally have taken an editorial position the brief filed by the Obama DOJ defending the indefensible Defense of Marriage Act:

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.

The best approach of all would have been to make clear, even as it defends the law in court, that it is fighting for gay rights. It should work to repeal “don’t ask, don’t tell,” the law that bans gay men and lesbians in the military from being open about their sexuality. It should push hard for a federal law banning employment discrimination. It should also work to repeal the Defense of Marriage Act in Congress.

The administration has had its hands full with the financial crisis, health care, Guantánamo Bay and other pressing matters. In times like these, issues like repealing the marriage act can seem like a distraction — or a political liability. But busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.

The brief itself is below:

Obama’s Motion to Dismiss Marriage case

I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.

–Dan Savage

Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection.  As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand.  DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

–Brief filed by the DOJ in its defense of the so-called Defense of Marriage Act.