Tag Archives: DOJ

Restoring civil liberties: one case at a time

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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.

Holder to appoint prosecutor to investigate torture (updated x2)

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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.

DOJ ethics office recommends abuse investigations

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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.

Bush’s brain

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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: Shameless

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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.

Warrantless wiretaps of limited value

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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.

Bush warrantless wiretapping program kept secret within DOJ (updated)

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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.

FBI not investigating Palin

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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.

NYT on DOJ pro-DOMA brief

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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.

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

Political quote of the day II

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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.

Obama and marriage equality

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The Obama administration’s DOJ filed a brief this week defending the federal Defense of Marriage Act (DOMA).  Among other arguments made in the brief are the following:

  • DOMA does not restrict any fundamental rights
  • DOMA saves the federal government money (by denying same-sex benefits, etc.) and its elimination would require taxing others more
  • Same-sex marriage is equivalent to incest and people marrying children
  • Loving v. Virginia (which ruled bans on interracial marriages unconstitutional) has no application to DOMA

This brief does more than argue a defense of DOMA; it is an insult to all gay Americans. And it is yet another breach of Obama’s campaign promises. He has taken no action whatsoever to repeal DOMA.

When asked to explain the comparison of gay marriage to incest, a DOJ spokesman said the DOJ was merely doing what it generally does: defending existing law. However, there are many instances, involving constitutional claims, where the DOJ has joined in challenges to existing federal law.

In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

One should also note that one of the three authors of the brief is a Bush holdover, a Mormon, and he received an award from Alberto Gonzalez for his work defending a ban on partial birth abortion.  As Andrew Sullivan notes:

So it becomes clearer. The harsh rhetoric, the gratuitous attacks on our relationships … they were written by someone who was given an award by Alberto Gonzales for his defense of the Partial Birth Abortion Act.

So who signed off on this brief? Who is responsible for this mess? Or are gays that low a priority for DOJ?

You can email the President to express your disappointment here.

Once again, failure at the NYT (updated)

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The New York Times fails to call torture torture. In addition, the continue to participate in misstating the facts regarding the clear pro-torture policies of the prior administration. The article implies, incorrectly, that all the involved lawyers at the DOJ were satisfied with the torture policies. They were not.  This is very much like the falsities promoted as truth by the New York Times in the build-up to the Iraq war.

Andrew Sullivan provides the analysis (worth reading in full):

The gist: if you actually read the leaked memos, and absorb the details of the NYT piece, you find the actual story: that the OLC lawyers were under enormous pressure to approve whatever Cheney wanted, were denied time to get the whole thing right, (Bradbury was even kept on probation until he spat out the “legal” approvals they wanted), were told that the president himself was pushing hard, and that a couple of them, Comey and Goldsmith, believed that the torture techniques, although technically “legal” in their judgment, were “simply awful” and would come back to haunt them.

Update: More from Talking Points Memo here.

I love C-SPAN

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And here is a good example of why.

Check out this clip of Supreme Court nominee Sonia Sotomayor in action last December 9, in oral arguments in Arar v. Ashcroft.  The case was filed by Arar claiming that he was arrested at JFK and shipped by the US to Syria to be tortured. This is a clip from an en banc rehearing by all twelve judges on the Second Circuit Court of Appeals.  The excerpt from the hearing starts at 17 minutes into the clip. Listen to her in her own words.  More info at Swampland.