Allison Kilkenny: Unreported

Obama’s Efforts to Block a Judicial Ruling on Bush’s Illegal Eavesdropping

Posted in Barack Obama, law, politics by allisonkilkenny on February 28, 2009

Glenn Greenwald

wiretaps3(updated below)

The Obama DOJ’s embrace of Bush’s state secrets privilege in the Jeppesen(torture/rendition) case generated substantial outrage, and rightly so.  But it’s now safe to say that far worse is the Obama DOJ’s conduct in the Al-Haramaincase — the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush’s NSA warrantless eavesdropping program.  Here’s the first paragraph from the Wired report on Friday’s appellate ruling, which refused the Obama DOJ’s request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:

A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

And here are the two paragraphs from the AP report:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government’s warrantless wiretapping program. . . .

The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.

Let’s just pause for a moment to consider how remarkable those statements are.  One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President’s actions.  They would insist that “secrecy” prevented a judicial ruling even when the President’s actions were (a) already publicly disclosed in detail and (b) were blatantly criminal — as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized.  Secrecy claims of that sort — to block judicial review of the President’s conduct, i.e., to immunize the President from the rule of law — provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing.  Hence, it is accurately deemed “a blow to the Obama administration” that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants.  Why is the Obama administration so vested in preventing that from happening, and — worse still — in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

Obama defenders take note:   this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ’s already filed arguments.  Here, they have done much, much more than that.  Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding — emergency appealsrequests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court. 

During the controversy in the Jeppesen/rendition case, there were actually “defend-Obama-at-all-costs” advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush’s State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent.  But in the Al-Haramin case, the Obama DOJ has now lost — twice — in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .

[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.

”The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,” said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.

Manifestly, the Obama DOJ has one goal and one goal only here:  to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal.  And they’re engaging in extraordinary efforts to ensure that occurs.

To explain why this behavior is so pernicious, so lawless and so dangerous, I’m going to turn the floor over to a long-time, eloquent critic of Bush’s secrecy theories — who just so happens also to be Obama’s soon-to-be-confirmedappointee for Chief of the Office of Legal Counsel, Dawn Johnsen.  In March of 2008 — less than a year ago — this is what she said about the Bush administration’s efforts to conceal its FISA-violating eavesdropping activities:

NYT? What’s Bush’s Excuse for Keeping Law Violations Secret?

But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?

I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.Remember that much of what we know about the Bush administration’s violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don’t know the full extent of our government’s illegal surveillanceor illegal interrogations (and who knows what else) — despite Congress’s failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.

Yet here we have the Obama DOJ doing exactly this — not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants.  As Obama’s hand-picked OLC chief put it:  “I’m afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret.”

The details of this case (which I’ve recounted in full here) highlight even further how indefensible is the Obama DOJ’s conduct.  The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it’s a “State Secret,” no individual party has “standing” to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark). 

But this case, from the start, was different.  As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity’s lawyers a documentshowing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens.  The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications.  That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush’s illegal spying program and they therefore have standing to sue. 

It is that document — which has been described publicly and which the plaintiffs’ lawyers have already seen — which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will — somehow — harm America’s national security.  Everyone knows the Bush administration spied on Americans without warrants and in violation of the law.  Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.  

Still, there’s the Obama administration — just like the Bush administration — claiming that we’ll all be slaughtered if a court rules on whether the President broke the law.  And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 — during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here’s more from Marcy on some key details in this case, andfrom EFF as well).

Our nation’s most transparent administration in history won’t bother to explainwhy they’re doing any of this: “A Justice Department spokesman declined to comment.”  We’ll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder’s faithful ear.  In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out:  namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President’s actions were, in fact, illegal.

* * * * * 

On a related note:  last week, I interviewed the ACLU’s Jonathan Hafetz about the Obama administration’s March 23 deadline to file a Supreme Court brief in the Al-Marri case, brought by the last person still being held on U.S. soil as an “enemy combatant.”  In 2003, Al-Marri (Hafetz’s client), who was in the U.S. legally on a student visa, was about to be tried on various criminal charges when, at the last minute, Bush declared him an “enemy combatant” and ordered him transferred to a military brig, where he has remained ever since with no charges and no trial.  In his case, the Fourth Circuit’s Court of Appeals last year largely upheld the power of the President to imprison legal residents (and even U.S. citizens) on U.S. soil in military prison with no criminal charges, and the U.S. Supreme Court had agreed to review that decision.

This week, the Obama DOJ filed criminal charges against Al-Marri, so he will now be transferred back to the civilian court system and have what the U.S. Constitution clearly mandates:  a full trial and due process.  For Al-Marri, that is a positive step:  now, he’ll only remain in prison if he’s convicted of a crime in a real court and (presumably) will be freed if he’s acquitted.  That’s how our system is supposed to work.

But whether this is a positive step in a general sense is a different question.  In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as “enemy combatants” with no trial.  Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot.  The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit’s affirmation that the President has this power. 

If that is what the Obama DOJ does here — namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit’s horrendous ruling) — that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.

The Obama DOJ deserves some limited credit for indicting Al-Marri and thus refusing to continue to imprison him with no charges.  It’s certainly not Obama’s fault that Al-Marri was imprisoned for years with no charges, and the only fair option was to do what they did:  give him a real trial.  But if this indictment results in the preservation of the President’s power in the future to similarly detain people without charges — because of the Obama DOJ’s efforts to block the Supreme Court from ruling on this question — then it is worthy of criticisms for the same reasons it was in the Padilla case.  

Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather:   do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that — even if it remains dormant now — Obama or some future President can decide at any time to revitalize and use it at will?  Thus far, Obama’s answer to that question seems to be a resounding “yes.”

UPDATE:   I spoke to the annual conference of the ACLU of Massachusetts last month regarding impediments to the restoration of civil liberties under the Obama administration.  I posted the link at the end of yesterday’s post, but since that was at the end of the day, and since the speech relates directly to the topic here, I’ll post it again for those interested:  the 30-minute speech can be heard on MP3 here and is also available on ITunes here (the video of the speech may or may not be posted at some point in the future).

Siegelman: New Revelations “More Frightening Than Anything That Came Before”

Posted in Uncategorized by allisonkilkenny on November 14, 2008

securedownload-1By Zachary Roth

Former Alabama governor Don Siegelman says that new revelations about his prosecution amount to “outrageous criminal conduct in the US Attorney’s office and the Department of Justice,” and are “more frightening than anything that has come before.” And he believes that his case is just the tip of the iceberg in terms of politicized prosecutions by DOJ.

Siegelman was reacting in an interview with TPMmuckraker to the news, first reported this morning by Time, that the US Attorney on his case, who had recused herself because her husband was a top GOP operative who had worked closely with Karl Rove — and even run the 2002 campaign of Siegelman’s gubernatorial opponent — continued to advise prosecutors on the case.

At times while speaking to TPMmuckraker, Siegelman appeared to have trouble maintaining his composure. He called the news — which came from a whistleblower in the US Attorney’s office who passed on emails and other information to the House Judiciary Commitee — “another shocking revelation in the misconduct of the US attorneys offices and the DOJ.”

The news appears to contradict previous statements from DOJ on the matter. When Congress investigated the affair earlier this year, DOJ had said that the US Attorney, Leura Canary, had recused herself “before any significant decisions … were made.”

Siegelman continued: “If what [the whistleblower] says is true, it’s one issue. But the fact that it was never disclosed to the defense or the judge, and then was covered up by DOJ, is a crime, even if what she said wasn’t true.”

He added: “At every stage of this investigation, either by lawyers or the House Judiciary Committee, DOJ has refused to turn over documents” or otherwise cooperate.

The authenticity of the key emails provided by the whistleblower has not been questioned, according to Time.

Siegelman also said he was shocked by other revelations from the whistleblower, including that one of the jurors had expressed romantic interest in an FBI agent working with prosecutors. He called it “astounding” that this hadn’t been revealed to the judge and the defense.

And Siegelman, a Democrat, left no doubt that he believes that the apparent politicization of his prosecution was just one example of many such cases. “If this were isolated to just the middle district of Alabama, it would be shocking enough. But I guarantee this kind of misbehavior has been going on all over the country.”

He added: “Whoever is the new Attorney General has to be strong enough to weed out the Karl Rove clones who have been embedded in US Attorneys’ offices throughout the United States. If not, it is going to eat at our system for years to come.”

At one point, Siegelman turned philosophical: “If I’ve been put through this for a reason, it’s to expose the fact that this is not an isolated incident. I am prayerful that Congress will dig in and demand the truth. These folks have got to be weeded out.”

Read the full Don Siegelman backstory here

Bush Orders DOJ to Probe Ohio Voter Registrations

Posted in Barack Obama, politics by allisonkilkenny on October 25, 2008

 

By Jason Leopold
The Public Record
Friday, October 24, 2008
President George W. Bush late Friday asked Attorney General Michael Mukasey to investigate whether 200,000 newly registered voters in the battleground state of Ohio would have to reconfirm their voter registration information, an issue the U.S. Supreme Court weighed in on last week.
The unprecedented intervention by the White House less than two weeks before the presidential election may result in at least 200,000 newly registered voters in Ohio not being able to vote on Election Day if they are forced to provide additional identification when they head to the polls.

House Minority Leader John Boehner, R-Ohio, sent a letter to Bush Friday asking that he order the Department of Justice to probe the matter.

“I strongly urge you to direct Attorney General Mukasey and the Department of Justice to act.” Boehner said in his letter “Unless action is taken by the Department immediately, thousands, if not tens or hundreds of thousands of names whose information has not been verified through the [Help America Vote Act] procedures mandated by Congress will remain on the voter rolls during the November 4 election; and there is a significant risk if not a certainty, that unlawful votes will be cast and counted. Given the Election Day is less than two weeks away, immediate action by the Department is not only warranted, but also crucial.”
Independent studies also have shown that phony registrations rarely result in illegally cast ballots because there are so many other safeguards built into the system.

For instance, from October 2002 to September 2005, a total of 70 people were convicted for federal election related crimes, according to figures compiled by the New York Times last year. Only 18 of those were for ineligible voting.

In recent years, federal prosecutors reached similar conclusions despite pressure from the Bush administration to lodge “election fraud” charges against ACORN and other groups seen as bringing more Democratic voters into the democratic process.

Some of the Bush administration prosecutors who refused to seek these indictments were then fired in 2006 as part of a purge of nine U.S. Attorneys deemed not “loyal Bushies.”

This “prosecutor-gate” scandal led to the resignations of several senior White House and Justice Department officials, including Attorney General Alberto GonzalesPresident Bush then asserted broad executive privilege to block testimony by Karl Rove and other top White House officials.

In a statement on his website, Boehner said starting today, “Ohio elections officials will begin removing ballots cast during the state’s early voting period from their identifying envelopes, eliminating any possibility of catching fraudulently cast ballots.”

“Franklin County officials yesterday tossed out a dozen fraudulently cast absentee ballots, and the Hamilton County prosecutor has appointed an independent counsel to investigate more than 200 ballots on which the name or address does not match to state records,” Boehner said. “Prosecutor Joe Deters has asked that at least the questionable ballots remain in their identifying envelopes until voter registration information can be confirmed.”

President Bush contacted Mukasey late Friday, White House spokeswoman Dana Perino said, and requested he investigate. A report released earlier this month by the Justice Department’s inspector general said Bush “spoke with Attorney General Gonzales in October 2006 about their concerns over voter fraud.”

Federal investigative guidelines strongly discourage election-related probes before ballots are cast because of the likelihood that the inquiries will become politicized and might influence the election outcomes.

“In most cases, voters should not be interviewed, or other voter-related investigation done, until after the election is over,” according to the Justice Department’s guidelines for election offenses as revised in May 2007 during Gonzales’s tenure as Attorney General.

Even though those May 2007 guidelines watered down even stricter language in previous editions, the Gonzales-era rules still cautioned:

“Overt investigative steps may chill legitimate voting activities. They are also likely to be perceived by voters and candidates as an intrusion into the election. Indeed, the fact of a federal criminal investigation may itself become an issue in the election.”

In 2004, Ohio was the state where tens of thousands of votes cast on electronic voting machines intended for Sen. John Kerry, the 2004Democratic presidential candidate, were handed to Bush. Additionally, tens of thousands of voters were purged from voter registration rolls. Exit polls on election night 2004 showed Kerry leading Bush in many Ohio counties. Bush carried Ohio by 119,000 votes.

The Nov. 4 presidential election may very well boil down to Ohio if Mukasey’s DOJ gets involved.

At issue is a federal law that requires states to verify the eligibility of voters.

federal appeals court recently upheld a lower court ruling and ordered Ohio election officials to help counties set up a computer system to ensure the veracity of voter registrations.  

That would have required a total overhaul of the computer system just weeks before election and would have jeopardized as many as 200,000 voters, forcing them to cast provisional ballots that may go uncounted, Brunner said.

She said it was impossible to set up a new system or reprogram the existing one before the Nov. 4 election.

The appeals court ruling was in response to a lawsuit filed last month against Ohio Secretary of State Jennifer Bruner, a Democrat, by the Ohio Republican Party. The lawsuit claimed voter registration information for hundreds of thousands of new voters did not match up with official government data, such as social security records and driver’s licenses, and was evidence of voter registration fraud. More than 600,000 people registered to vote in the state in this election cycle.

But in court filings, GOP officials did not provide documentary evidence to back up their claims.

The Ohio Republican Party argued that the 2002 Help America Vote Act (HAVA), a law that grew out of the disastrous 2000 election between Bush and Al Gore, required Brunner to share any voter registration discrepancies with county election boards so they can identify voter fraud prior to vote counts.

Republicans faulted Brunner for her “steadfast refusal to provide the HAVA “mismatch” data to the county boards of elections in a meaningful way.”

The Ohio GOP wanted Brunner to provide the lists of the newly registered voters whose voter registration information on did not match government records with 88 Ohio counties in an attempt to weed out voter registration fraud.

Republicans accused Brunner of violating federal election laws and that she was “actively working to conceal fraudulent activity.”

Brunner said the lawsuit was “politically motivated.” She said “misstated technical information or glitches in databases” was the explanation for some mismatched information on voter registration forms.

“Many of those discrepancies bear no relationship whatsoever to a voter’s eligibility to vote a regular, as opposed to a provisional, ballot,” Brunner said last week in a court filing. The mismatches “may well be used at the county level unnecessarily to challenge fully qualified voters and severely disrupt the voting process.”

Last week, the U.S. Supreme Court took up the case and, in a two-page unanimous opinion, dismissed the lower court’s ruling on a technicality. The justices said lawsuits “brought by a private litigant” could not be used to enforce states to abide by federal laws.
“We express no opinion on the question whether HAVA is being properly implemented,” the unsigned opinion said.  

In a statement, Boehner said he wants Mukasey to intervene and enforce Brunner to comply with HAVA and verify votes.  

The Court ruled that the a private entity did not have the legal standing to enforce federal laws, leading Boehner to ask Attorney General Mukasey to compel Brunner to comply, which would mean providing access to a computerized statewide database, as required under HAVA,” Boehner’s statement says.   

Rick DavisSen. John McCain‘s campaign manager, said Brunner is seeking to “minimize the level of fairness and transparency in this election.”

Various polling data show McCain’s opponent, Sen. Barack Obama, leading in Ohio by five to seven percentage points.

But Republicans, perhaps fearing a Democratic victory, have called into question the integrity of hundreds of thousands new voter registrations.

One of the most notable targets is the Association of Community Organizations for Reform Now (ACORN), a grassroots group that has registered hundreds of thousands of new voters this year. ACORN is reportedly under federal investigation for engaging in what Republicans believe is a nationwide voter registration fraud scheme.

Trying to salvage his campaign, John McCain has jumped into the ACORN case, too, citing it at the third presidential debate. He declared ACORN “is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.”

However, the investigations launched against ACORN – now including the reported involvement of the FBI – have raised other concerns, especially that Republicans are flogging this issue in an effort to stir up anger, to revive McCain’s campaign, and to intimidate new voters.

For its part, ACORN has insisted that its own quality control flagged many of the suspicious registration forms before they were submitted to state officials and that state laws often require outside registration groups to submit all forms regardless of obvious problems.