Little left to say… 22 June 2009

Cartoon from the UK Independent, June 5 2009

From McClatchy:

In stark legal turnaround, Obama now resembles Bush

WASHINGTON — President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist. [so few! What are we down to? Skin color? — Mcat]

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

A courtroom clash Thursday illustrated how Obama has come to emulate Bush.

Weismann’s organization sued last year to obtain the notes from an interview that the FBI conducted with then-Vice President Dick Cheney. The interview was part of an investigation into leaks concerning undercover CIA officer Valerie Plame, and the Bush administration vigorously fought the release of the notes.

“The records contain descriptions of confidential deliberations among top White House officials which are protected by the deliberative process and presidential communications privileges,” Bush’s Justice Department argued in an Oct. 10, 2008, legal brief.

Obama’s Justice Department held the same line Thursday.

“The new leadership of the department supports those arguments,” Justice Department attorney Jeffrey Smith told U.S. District Judge Emmet Sullivan during the oral argument.

“The Department of Justice is an ongoing entity, and it is not normal for us to update cases simply because we have a new attorney general.”

Perspectives, of course, often change once candidates assume responsibility upon taking office. As a candidate, for instance, Obama opposed the Defense of Marriage Act, which defines marriage as between a man and a woman.

As president, however, he’s following Bush’s lead in defending in court the federal marriage law, which a California same-sex couple is challenging.

The law “reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage,” Assistant Attorney General Tony West declared in a legal filing June 11.

Legally speaking, every administration inherits lawsuits filed against its predecessor. The Solicitor General’s Office, which represents the government in appeals, traditionally tries to hold a steady course. Personnel, too, stick around. John Brennan, the CIA director’s chief of staff during the Bush administration, is now closely advising Obama as a senior National Security Council staffer. [“stick around”? oh for fuck’s sake! Because OBAMA wanted him.. in fact, for a spot that required a congressional vote, which looked chancey, so he got dropped into the NSA… -Mcat]

Whatever the reasons, policy persists.

The Bush White House sought to keep e-mails secret. The Obama White House has followed suit.

The Bush White House sought to keep visitor logs secret. The Obama White House, so far, takes the same view.

Petaluma, Calif., resident Carolyn Jewel and the Electronic Frontier Foundation, a legal activist group, sued the Bush administration over warrantless wiretaps. The Bush administration said that the lawsuit endangered national security. The Obama administration now agrees.

“The disclosure of the information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Acting Assistant Attorney General Michael F. Hertz declared in a brief April 3.

Similarly, the Bush administration objected to an American Civil Liberties Union request for access to documents that include photographs that reportedly show the abuse of foreign prisoners held by the U.S. military in Iraq and Afghanistan. The Obama administration declared in April that it would release the photographs.

Three weeks later, Obama reversed course and declared that “releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger.” The administration’s attorneys followed up with a legal brief, augmented by a 24-page declaration that CIA Director Leon Panetta filed June 9.

“Information containing details of the (interrogation techniques) being applied would provide ready-made ammunition for al Qaida propaganda,” Panetta declared. “The resultant damage to the national security would likely be exceptionally grave.”

In an interview, ACLU attorney Amrit Singh said that “the trend, as it is now, is disappointing” as Obama follows the Bush lead.

The Obama administration now will appeal to the Supreme Court in an effort to keep the photos and related information secret.

On the opposite coast, a similar drama is playing out in a clash over so-called “torture flights.”

An ACLU lawsuit, initially filed in U.S. District Court in San Jose, Calif., contends that the Boeing subsidiary Jeppesen DataPlan knowingly supported a CIA operation that flew terrorism suspects to brutal overseas prisons. The Bush administration invoked the “state secrets” privilege in an effort to stop the suit.

“Further litigation of this case would pose an unacceptable risk of disclosure of information that the nation’s security requires not be disclosed,” the Bush administration declared in a legal filing on Oct. 18, 2007.

The Obama administration now says the same, after a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled April 21 that the case could proceed.

“Permitting this suit to proceed would pose an unacceptable risk to national security,” the Obama administration declared in a legal filing June 12.

For both arguments, the two administrations relied on the attestations of the same man: former Bush CIA Director Michael Hayden.

What can one say… and that is the short version, McClatchy hit the highest peaks.

***
Glenn Greenwald has a piece up on the DNA case the SCOTUS decided on Thursday.

Popcorn and hankies.  It is to weep over.. but………

Numerous liberal commentators are, rightfully, infuriated by the decision, but have been notably incomplete in their critiques.

…

There’s one important fact missing from all of that analysis: namely, this was yet another case where the Obama DOJ sided with the Bush administration and advocated the position that the conservative justices adopted. The Obama DOJ aggressively argued before the Court that convicted criminals have no constitutional right to access evidence for DNA analysis.  …

I am guessing W and GHW sent Ob a high five. One of the guys..And maybe a pair of gold spurs for his very own. Years ago Reagan sent Saddam a pair of solid gold spurs, I used to laugh, speculating that the personal note said some thing like:

From a guy to a guy.

Ob probably would drool for a note like that. From a bona fide, big time white conservative and global killer. He’d probably like to dig up Reagan,  kiss his orange cheeks and ask for some more spurs.

More from Greenwald:

[I]ndeed, the Obama DOJ rejected explicit requests from defendants rights advocates to repudiate the Bush position. Instead, the Obama DOJ announced that Deputy Solicitor General Neal Katyal would make his debut appearance before the Supreme Court in that capacity advocating the Bush position (and that’s what then happened):

The solicitor general’s office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners’ access to DNA evidence in post-conviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska’s view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence — even if the prisoners pay for the DNA testing themselves. . . .

The bolding there is Greenwald’s…  Within the text of his article he makes clear, the hue and cry over the ruling, all but one reference in the NYT leaves out the role of the current administration, and along the way he names Yglesias, Millhiser at Think Progress (a CAP project) and Scott Lemieux in particular… well, they all helped in their small way to put Ob in… why cry now… too late.

In my opinion it was not honest work, covering for him now surely is not.. but, done is done.

They will help again as well:  Good Democrats.  Bless their tiny and ever tinier liberal hearts.

In all of the commentary condemning this decision, the only acknowledgment I saw of the role played by the Obama administration was in yesterday’s New York Times Editorial:

We are also puzzled and disturbed by the Obama administration’s decision to side with Alaska in this case — continuing the Bush administration’s opposition to recognizing a right to access physical evidence for post-conviction DNA testing.

Thursday’s ruling will inevitably allow some innocent people to languish in prison without having the chance to definitively prove their innocence and with the state never being completely certain of their guilt.

Even the Wapo, in an editorial that showed Osborne, the person at issue here, to be a very unsympathetic character, states the SCOTUS ruling was wrong, based on due process.

The thread to the Greenwald post is very interesting.. one comment that seeks to show a different spin on the case before the court, here [I just don’t buy that Ob and congress are working like little civil rights beavers to expand use of DNA.  Share that Easter Bunny elsewhere, LOL].

And, another, very troubling, that indicates the amicus brief had widespread support from Democrats across the nation.  He names two, one of which is Jerry Brown, our AG.  IMO Jerry’s been off the tracks for some years now.

Bolding is mine…

That amicus curiae brief

Glenn — it is vitally important that you comment on the amicus curiae brief in this case, in which attorneys general and various other figures from across the country, from Jerry Brown of California to Tom Miller of Iowa, supported this decision.

A real question needs to be asked, thusly — why such broad support from the Democratic Party for such a massive punt on civil rights by the Supreme Court? I would be particularly interested to hear views on two hypotheses of mine. The first is that the generally bureaucratic, civil service, non-customer-oriented, non-citizen-oriented, cover-your-ass culture prevalent in much of the Democratic Party is rearing its head here as prosecutors don’t want to be placed on the hook for mistakes or misconduct by new technology. The second, more ominous reading, is that rather like New Labour in England, the US Democrats all the way from the hard left to the center are in general supporting authoritarianism as a central tool in the war on crime.

— decisivemoment

[Read decisivemoment’s other letters]

Permalink Flag Saturday, June 20, 2009 12:55 PM

Con law lecturer, elevated beyond the chalk board. And grading papers… A Chicago fixer.  A tool.

We are so blessed.

***

I cannot resist,  June 3, 2008 in Minneapolis, the night he won the nomination… mops at the ready for the drool, clear the storm drains:

The journey will be difficult. The road will be long. I face this challenge with profound humility, and knowledge of my own limitations. But I also face it with limitless faith in the capacity of the American people. Because if we are willing to work for it, and fight for it, and believe in it, then I am absolutely certain that generations from now, we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal; this was the moment when we ended a war and secured our nation and restored our image as the last, best hope on earth. This was the moment—this was the time—when we came together to remake this great nation so that it may always reflect our very best selves and our highest ideals. Thank you, God bless you, and may God bless the United States of America.

AND in among the slobber that night was this line, too:

I’ve sat across the table from law enforcement and civil rights advocates to reform a criminal justice system that sent thirteen innocent people to death row.

… a rising ocean of drool, followed by fists.