They Said One Thing, They Did Another

Photo via Sully

Gwen Florio in the Missoulian:

Federal raids hit medical marijuana shops from Columbia Falls to Billings on Monday, spreading “a horrible mixture of fear and rage” through a community already roiled by high-profile attempts to regulate it.

“The reckless and cruel disregard for the patients that count on these shops is going to cause a lot of heartache,” said John Masterson of Missoula, who heads Montana NORML (National Organization for the Reform of Marijuana Laws), which live-blogged information about the raids throughout the day Monday.

Advocates for medical marijuana noted that federal agents executed their search warrants even as a Montana Senate panel collected testimony on a bill to repeal the state’s 2004 voter initiative legalizing medicinal use of marijuana. (See related story.)

“It sure feels like a blatant, obvious, calculated, bullying interference by the federal government in Montana decision-making,” said Tom Daubert, a leading medical marijuana advocate, who was in the committee hearing Monday morning when he heard about the raids.

Andrew Sullivan:

A reader flags the troubling news, adding, “The Feds have not stopped cracking down on medical marijuana even though Obama said they would.”

Jacob Sullum at Reason:

Wait. Didn’t Barack Obama repeatedly promise to call off the DEA’s medical marijuana raids when he was running for president, and didn’t his attorney general instruct federal prosecutors to leave patients and providers alone as long as they are complying with state law? Sort of. Under a policy change announced by the Justice Department in October 2009, U.S. attorneys were told that, “as a general matter,” they “should not focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In practice, this policy means the feds reserve the right to interpret state law and decide whether patients and providers are following it, as illustrated by continued raids in California, Colorado, and Michigan.

Montana, like California and Michigan, allows “caregivers” as well as patients to grow marijuana. Montana’s Medical Marijuana Act (PDF) defines a caregiver as an individual “who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana.” A patient with a doctor’s recommendation may grow up to six plants and possess up to one ounce of usable marijuana for his own consumption, or he can designate a caregiver, who may grow up to six plants on his behalf. Are patients or caregivers allowed to form “cooperatives,” as they do in California, and grow marijuana together? According to the state Department of Public Health & Human Services, which keeps track of registered patients and their caregivers, “the law is silent on this issue.” And although the law specifies that “a qualifying patient may have only one caregiver at any one time,” it does not seem to address the question of whether a caregiver may grow marijuana for more than one patient.

The upshot is that the DEA can always argue that any individual or group of people with more than six plants (or more than one ounce of usable marijuana) in one place is not “in clear and unambiguous compliance” with Montana law. That would be the case even if state courts explicitly approved grow operations and dispensaries operated by patients or caregivers. Federal raids have continued in California even though the state attorney general (now the governor) said dispensaries are permitted.

Jeralyn at Talk Left:

Medical marijuana has been legal in Montana since 2004. Efforts are underway in the legislature to repeal it.

On Monday in the state Legislature, a committee deadlocked on a bill that would repeal the state’s medical marijuana law.

The Senate Judiciary Committee voted 6-6 on House Speaker Mike Milburn’s House Bill 161, which would repeal the law passed by voters in 2004. Unless the deadlock is broken, the bill is dead.

Among the federal agencies involved in the raids:

[The]Drug Enforcement Administration, Immigration and Customs Enforcement, Internal Revenue Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Investigation.

It sure sounds like the raids were timed to coincide with the consideration of the repeal bill. These raids occurred all over the state, including: Belgrade, Big Sky, Billings, Bozeman, Columbia Falls, Dillon, Great Falls, Helena, Kalispell, Miles City, Missoula, Olney and Whitefish.

Montana patients are not staying silent:

[T]he patient community has quickly responded by planning coordinated vigils at various city halls across the state at 5pm on Wednesday. Tomorrow’s vigils are being organized by Americans for Safe Access and sponsored by Patients and Families United and Montana Medical Growers Association, which are both statewide medical marijuana groups.

Americans for Safe Access is distributing this Raid Emergency Response Plan for businesses who fear being raided.

Jason Sullem at Reason has more on Montana’s medical marijuana muddle. The problem is that Obama and AG Eric Holder’s positions are vague and arbitrarily enforced, as evident from the October, 2009 memo.

The Obama Administration is not committed to allowing medical marijuana in states with laws that allow it. As I wrote here,

[T]he Holder statements and Ogden Memo are not enough protection. Short of legalization, Congress at least needs to pass a law disallowing prosecution of medical marijuana patients and providers who are in compliance with state law — or at a minimum, a law that expressly allows patients, caregivers and providers to raise compliance with state law as an affirmative defense to a federal prosecution.

Congressman Jared Polis is seeking decriminalization at the federal level. He’s even appearing at industry events. I have doubts it will happen at the federal level while Obama is President. The next best thing is protection from federal prosecution. (More on Polis’ efforts here.)

Caitlin Dickson at The Atlantic:

The raids raise questions about the legitimacy of state marijuana laws in the face of a federal government that considers any production and sale of the substance to be illegal. They also highlight two particular areas where the difference between federal and state marijuana laws collide.

Drug trafficking: Possession was not the issue in Monday’s Montana raids nor Tuesday’s in California. Rather, agents targeted marijuana providers. These raids have elicited outrage from those who recall President Obama’s promise that the Justice Department would be more “hands off” with regard to prosecuting marijuana users and distributors in states that have legalized the medical use of pot. Just last month, AOL News’ Jacob Sullum analyzed the instructions U.S. attorney’s received in November to apply said lenience only to “individuals whose actions are in clear and unambiguous compliance with existing state laws.” He notes that states like California may allow patients or their “caregivers” to grow their pot collectively and sell it to other patients at dispensaries, but to U.S. attorneys or the DEA, dispensaries themselves “are completely illegal” regardless of the state’s law, “because they exchange pot for money.”
Tax evasion: The raided growers and dispensaries is Montana and California are all being charged with tax evasion. In states that have legalized medical marijuana use, medical marijuana dispensaries should be considered legal businesses. But, according to the I.R.S., “no deductable credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business…consists of trafficking in controlled substances…which is prohibited by Federal Law or the law of any State in which such trade or business is conducted.” That would, of course, pose quite a problem for filing taxes.

Ed Morrissey:

It’s possible in these two raids that there were other crimes suspected of the operators than just the sale of pot. Until the courts unseal the records, we won’t know the answer to that, as apparently no one in the DoJ wants to talk about it at the moment. If not, though, one can certainly argue that the statements of Obama and Holder about leaving state-licensed vendors alone amount to a moral case of entrapment, if not a legal case.

What is the actual Obama administration policy on licensed marijuana vendors in states like California? Shouldn’t they make that clear so that the operators of these clinics have a chance to adapt to a clear legal environment?

Ocean’s Eleven.com

Netroots Nation in Las Vegas. Huffington Post coverage

Philip Rucker at WaPo:

For all the talk of a splintered GOP base, with “tea party” conservatives squaring off against establishment Republicans, the Democrats have serious divisions of their own.

Democratic officials were hoping that after 18 months of deep frustration by many in the party’s liberal base over what they believe is President Obama‘s watered-down agenda, the prospect of losing ground in the November midterm elections would be enough to heal wounds. But as Netroots Nation, a conference of 2,100 liberal activists, opened here Thursday, it was clear that anger among some prominent progressives is still raw — and it could imperil some Democrats this fall.

Markos Moulitsas, founder of the Daily Kos blog and an organizer of the first such annual conference five years ago, said he and his followers are disinclined to help Democratic candidates simply to preserve the party’s big majorities.

“There’s a lot of Democrats I’ll be happy to see go,” Moulitsas said in an interview. “I’ll celebrate when Blanche Lincoln is out of the Senate. There is a price to be paid for inaction and incompetence. We’re not getting much done with 59 [Democratic senators], so if we’re down to 54, who cares?”

Moulitsas went on to suggest that a smaller Democratic majority in the House might be better for advancing a more progressive agenda. “If 20 Blue Dogs lost their seats, nobody’s going to care,” he said. “That’s their problem and I’m not going to cry about them. To me, a more cohesive caucus might be a better deal moving forward than one in which the Blue Dogs need to be appeased.”

His bold statement came as House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry M. Reid (D-Nev.) are scheduled to address the convention Saturday and take questions from the audience. Obama is not planning to speak to the conference. The lone administration official dispatched here is Transportation Secretary Ray LaHood, a former congressman and the only Republican in Obama’s Cabinet — a fact that was not lost on attendees.

David Dayen at Firedoglake:

WiFi has seemed to come around here in Las Vegas, allowing me to deliver LIVE EXCLUSIVES about the Netroots Nation convention. Actually, I don’t have a whole lot to say. Here are some tidbits:

• Ran into Lt. Dan Choi yesterday, when he learned he was officially discharged. He still hasn’t seen the documents yet, but they are with his family. Choi was in jail a couple days ago for shutting down Las Vegas Boulevard protesting Harry Reid for not bringing ENDA to a vote in the Senate. He said it was odd to not be in his military uniform in jail.

• Bill Halter appeared on the morning panel, and I got to steal a few minutes with him. I asked him about the difficulty running against candidates who “progressive-wash” themselves. Blanche Lincoln came out with this derivatives title that she “wrote” right before the primary, blunting Halter’s message of Lincoln as a Wall Street fighter. Halter said that the complexity of the specific issue made it even harder to counteract the message – it was hard to wrap Arkansans heads around the fact that Lincoln left a big loophole in her Section 716 of the bill, for example, or that she didn’t filibuster the bill when Maria Cantwell was doing so precisely because her derivatives title became unenforceable. This is something that progressives need to figure out, because incumbents have done this over and over again to inoculate themselves from criticism from the left.

• Elaine Marshall’s campaign manager announced that internal polls show her leading by 2 points over Republican Richard Burr. The numbers are 37-35. Marshall, the more progressive candidate in the primary, is winning her general election campaign, or is at least very competitive; Blanche Lincoln, the more corporate candidate, is getting blitzed, even in her own internal polls, in the general election. These are both southern states, so it’s close to an apples-to-apples comparison. Says something about what type of candidates can be more effective. (This is actually a good rundown of the Halter panel, and the progressive determination to force primaries and get better Democrats.)

Philip Klein at The American Spectator:

Van Jones, the former Obama “green jobs czar” who was forced to resign after it was revealed that he signed a petition calling for an investigation into whether the Bush administration deliberately allowed the Sept. 11 attacks to happen, was given a standing ovation by liberal activists here at the Netroots Nation conference.

In a video introduction, former DNC chairman Howard Dean called Jones a “hero.”

During his speech, Jones said that he threw himself a long “pity party” after his exit from the administration, but compared his own struggle to the larger state of the nation. He made the case for investing in new energy technologies, and dismissed concerns about the deficit.

“There’s plenty of money out there, the only question is how to spend it,” Jones said.

In an onstage Q&A following the speech the Nation‘s Ari Melber said that the only reason Jones was targeted was that he was black and progressive.

Melber also told Jones, “You’re popular here because you get stuff done, but also because you’re cool.”

Ari Melber at The Nation:

The fifth annual Netroots Nation kicked off in Las Vegas on Thursday, as liberal bloggers and activists gathered to organize and assess an Obama administration that continues to disappoint key planks of the left. One of the first panels, scheduled months ago, could have been ripped from today’s headlines about Shirley Sherrod: “Fighting the Right Wing with Racial Justice.”

James Rucker, the cofounder of a netroots civil rights organization, told attendees that media personalities like Glenn Beck had to be “undressed” and combated in a platform that they don’t actually control. Rucker lamented that racial provocateurs like Andrew Breitbart, who does submit to interviews with traditional journalists, manage to get free press while escaping factual accountability.

An early, unscientific sampling of liberal conference attendees suggested a sour mood for the politics of the day. Across the hallways of The Rio, a bright, off-strip hotel that is budget but clean, people seemed pretty fed up with the entire Sherrod imbroglio. While the administration’s mistreatment of Sherrod does not meet the scale of foreign policy or financial reform, of course, the rushed, reflexive capitulation to disingenuous opponents dovetails with a caricature of Obama’s governing playbook, at least among some progressives.

Big Tent Democrat at Talk Left:

Here is a chuckle to start your morning:

The panelists gave voice to lingering disappointment over Halter’s failed bid. Adam Green, a co-founder of the Progressive Change Campaign Committee, had particularly harsh words for Bill Clinton, whose full-throated endorsement of Lincoln is credited with helping her win. “It’s tough to see someone you’ve believed in betray you in a big way,” Green said of the former president. “We need to pick our heroes. . . . I think it would be sad if we went through this entire conference without calling out Bill Clinton for what he did.”

(Emphasis supplied.) Heh. Harsh words for Bill Clinton from a blogger? Now that’s never happened. I wonder if Bill Clinton felt like he was being treated as a “hero” when he was called a racist during the 2008 primaries. Oh by the way, President Obama endorsed Lincoln too.

Of course the real problem is having politician “heroes” in the first place. Pols are pols and do what they do.

Instapundit:

This, by the way, should be a lesson to the Tea Party folks on why taking over the party from the ground up is important. If you control the state committee, they can’t just ignore you they way they can if you’re solely a bunch of outsiders.

Dan Riehl:

It appears if the progressive-leftist activists of the Netroots have their way, what happens in Vegas is not going to stay in Vegas. They want it to play out at ballot boxes across the country in November, resulting in the Democrats losing seats in Congress. Obama has never been that openly kind to the Lefty bloggers. Rahm being in the WH hasn’t helped. Actually, the Netroots was more powerful in 2007, than it is today. The Democrats can only have one deliverer, after all. And it’s now Obama, not Markos Moulitsas.

Between their loss in stature and various policy riffs, and with Democrats already poised to take a beating, would it empower them to get all fired up for what will likely be big losses in the fall? From the Netroots perspective, the better bet might be to sit this one out so they can say, see we told you so after November. Hmm. Finally, this news alone could hurt Democrat fundraising. Given all that – Go Kos! We got your back, dude. Where would you like us to plant the knife?

Can President Bush Or President Obama Hear Us Now?

Emptywheel at Firedoglake:

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

More Emptywheel:

I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

Michael Scherer at Swampland at Time:

Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)

1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”

2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.

3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

Glenn Greenwald:

On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny.  As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush’s illegal eavesdropping program.  For more on the background of this case and the Obama DOJ’s extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I’ll likely have more on this shortly.

Orin Kerr:

The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

Jeralyn at Talk Left:

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant.

David Kravets at Wired:

Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.

Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence (.pdf). Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008.

The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

Adam Serwer at The American Prospect:

What seems immediately significant to me about this ruling, beyond calling into question the legality of the warrantless wiretapping program, is that unless the government appeals, it will be beyond argument that both administrations have been abusing the state-secrets privilege by using it to prevent scrutiny of illegal behavior by the government.

Nick Baumann at Mother Jones:

In 2006, Al-Haramain sued then-President George W. Bush and other top officials after the government mistakenly provided the charity with classified documents that supposedly prove it had been illegally surveilled. A district court judge initially ruled that Al-Haramain could use those documents in its case. Eventually, however, the courts decided that the “state secrets” clause precluded the charity from using the classified documents at trial—a defeat that some observers thought would be fatal to the lawsuit.

Instead of giving up, Al-Haramain and its lawyers tried a different tack, gathering ten times as much unclassified evidence as they had previously submitted. The government, in a tiff, refused to submit evidence contradicting the plaintiffs’ claims, and even tried to claim that it didn’t have to. Walker didn’t like that argument too much: Because the government refused to submit any evidence calling the plaintiffs’ case into question, he simply granted summary judgment—a sort of TKO.

Count this round for the civil libertarians.

UPDATE: More Greenwald

Jacob Sulllum at Reason

Julian Sanchez at Cato

The Uighurs And The Supremes

Rebecca Crootof and Oona A. Hathaway in Slate:

In a recent “Jurisprudence,” Rebecca Crootof and Oona Hathaway urged the Supreme Court not to duck Kiyemba v. Obama, this year’s big Guantanamo case, which involves seven Chinese Uighur detainees whom the government has conceded are not dangerous. Crootof and Hathaway also argued that the most important outcome was for the Supreme Court to vacate the U.S. Court of Appeals for the D.C. Circuit’s previous ruling, which held that the government had the authority to detain the Uighurs indefinitely. The Supreme Court did this today, wiping out the D.C Circuit’s earlier decision and sending Kiyemba back to that court. “Each of the detainees at issue in this case has received at least one offer of resettlement in another country,” the Supreme Court’s order states. “Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay. This change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Crootof and Hathaway’s article is reprinted below.

Does a district court have the power to order the release of a person who is unlawfully held by the U.S. government? This is the central issue of Kiyemba v. Obama, the case before the Supreme Court involving seven Chinese ethnic-minority Uighurs being held on Guantanamo. The government is now seeking to have the case “dismissed as improvidently granted” after recent news that two of the Uighurs received offers of resettlement in Switzerland—including the only one of the seven who previously had not had a country willing to take him. But if the court were to do as the government suggests, it would fail to resolve important concerns about the courts’ power to order the release of people unlawfully held by the government. Worse, it would also leave bad law standing.

[…]

Because of Switzerland’s new offer, the government is now seeking to have the case dismissed as improvidently granted. This action is appropriate when, as the Supreme Court put it in 1959, all relevant facts about a case were not “fully apprehended at the time certiorari was granted”—in other words, if the court misunderstood the facts of the case when it agreed to grant certiorari. In a letter filed on Feb. 5, Solicitor General Elena Kagan stated that the court “might wish” to dismiss the case as improvidently granted because, along with the previous offer from Palau to take five of the Uighurs, the Swiss offer to resettle the remaining two eliminated “the factual premise of the question presented in this case—i.e., that petitioners have no possibility of leaving Guantanamo Bay except by being brought to and released in the United States.”

Whatever one may think of the merits of the case, dismissal on these grounds is clearly not the right outcome. It would represent an exceedingly transparent effort by the court to avoid conflict with the president and to dodge wrestling with the difficult questions presented by this case. The relevant facts were “fully apprehended” at the time the court took the case. The government is not even attempting to make the argument that they were not; instead, it is arguing that the facts have changed.

If the court concludes that Switzerland’s offer changes the circumstances so much that a judgment is no longer necessary, then the appropriate approach would be to find the case moot, as Linda Greenhouse recently pointed out in the New York Times. The court would then vacate the D.C. Circuit opinion and send the case back to that court with instructions to dismiss. This would have the benefit of eliminating the wrongheaded D.C. Circuit ruling. Dismissing the case as improvidently granted, by contrast, would leave this decision on the books, where it would adversely affect other Guantanamo detainees in the future.

SCOTUSBlog:

The Supreme Court on Monday ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month.  In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.”  The case is Kiyemba, et al., v. Obama, et al. (08-1234).  The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Justices’ action has two immediate effects: first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and, second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.”  President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention.  There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks. A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate.  That case involves some of the same individuals who appealed in the case the Court agreed to hear in October.  (The granted case is now informally known as “Kiyemba I.”  The case in 09-581 is thus known as “Kiyemba II.”)

Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention.  The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them.  The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere.

Jacob Sullum at Reason:

Although the federal government does not claim these detainees are terrorists or any other kind of “enemy combatant,” it had refused to release them, saying they would face persecution in their native China and had nowhere else to go. In 2008 a federal judge in Washington ordered the Uighurs’ release within the United States, a ruling that was later overturned by the U.S. Court of Appeals for the D.C. Circuit, which said only the executive branch has the authority to admit people into the country. Today the Supreme Court vacated that decision, noting that foreign countries finally have agreed to accept all the remaining Uighur detainees, making the immigration issue moot.

Daniel Foster at The Corner

Jeralyn at Talk Left

David Savage at The LA Times:

“By now, each of the detainees at issue in this case has received at least one offer of resettlement in another country,” the court said in a brief order. Most have left Guantanamo. However, five of them have rejected two such offers and remain at the U.S. prison, the justices said.

Because none of the Uighurs can now claim they are being held against their will at Guantanamo, the court said it would not decide their legal claim in the case of Kiyemba vs. Obama. Instead, it sent the case back to a lower court to oversee the dispute.

The court’s action spares the Obama administration a showdown with the court over whether it could continue to hold Guantanamo prisoners who had won their legal claims before a federal judge. The move gives the administration more time to resolve how to handle the remaining prisoners at Guantanamo.

Big Brother Is Watching Me Type This Post Title

Declan McCullagh at CNET:

The FBI is pressing Internet service providers to record which Web sites customers visit and retain those logs for two years, a requirement that law enforcement believes could help it in investigations of child pornography and other serious crimes.

FBI Director Robert Mueller supports storing Internet users’ “origin and destination information,” a bureau attorney said at a federal task force meeting on Thursday.

As far back as a 2006 speech, Mueller had called for data retention on the part of Internet providers, and emphasized the point two years later when explicitly asking Congress to enact a law making it mandatory. But it had not been clear before that the FBI was asking companies to begin to keep logs of what Web sites are visited, which few if any currently do.

The FBI is not alone in renewing its push for data retention. As CNET reported earlier this week, a survey of state computer crime investigators found them to be nearly unanimous in supporting the idea. Matt Dunn, an Immigration and Customs Enforcement agent in the Department of Homeland Security, also expressed support for the idea during the task force meeting.

Samuel Axon at Mashable:

That would mean monitoring the IP addresses, domains and exact websites users visit, and then storing that information for months. If officials who support this measure get their way, federal, state and local law enforcement would be able to access the information via search warrant or subpoena.

Access to exact URLs would require deep-packet inspection, which could be a violation of the Wiretap Act. The courts would end up having to make a ruling one way or the other if authorities try it.

The argument in favor is that the FBI has long been able to do this with telephone call information, but since so much telephone communication has been replaced by web activity, this would just be a preservation of existing powers. And those in favor insist that no actual content would be released to authorities — only points of contact. For example, authorities can see that a phone call was made from one number to another, but they don’t know what was said unless they wiretap.

Jeralyn at Talk Left:

The panel was very confrontational (it was live-streamed and an archived version should become available)

At the meeting, the FBI’s Gregg Motta said that the FBI director wants 2 year data retention for non-content data. He disagreed with a CDT paper by Nancy Libin, Chief Privacy Officer for DOJ, arguing that data retention is “invasive and risky.”

Kardasz claimed that ISPs delay compliance with subpoenas and fail to retain data long enough for investigations. He suggested data be kept for 5 years. He says ISP are facilitating crime and suggested ISPs be co-defendants in child p*rn cases. Subcommittee Chair Chris Bubb from AOL called Kardasz’ comments outrageous.

DOJ’s Paul Almanza says it does not have a position on data retention requirements and that the lack of data retention harms investigations of crimes against children.

From one report:

[T]he strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.

And get this: Verizon stores your e-mail forever, unless the user deletes it.

Drew Arena of Verizon says it stores information to correlate IP addresses & subscriber information for 12 months and e-mail forever.

These are two slides from one of the law enforcement presentations.

Mike Melanson:

While the emphasis is being placed on “routing” information and not “content”, a lot of content can be gleaned from these connections.

Michael Klurfeld:

One has to wonder how all of that information is going to be useful. If you’re trying to parse everything that an ISP’s customer has done over the course of two years, you’re going to end up in the territory of Excel spreadsheets that bring even the mightiest CPUs to a crawl.

Another concern is whether or not such a law for logging data explicitly for the purpose of federal investigation in some way violates the Constitution. For example, American citizens are entitled to an expectation of privacy. In my opinion, this if you’re just visiting a website in your home that doesn’t have any social features, this activity should be considered private. If, on the other hand, you’re on a site interacting with users, then you’re being less private.

Personally, any proposals for data logging set off my internal Orwellian sensors. The FBI argument will be that more data will allow for better policing of criminal activity, but that’s also the problem: all of the user data collected would be more or less for the purpose of prosecuting people. And the last thing we need in the US is more ways to put people in jail.

The Takeaway Of The Story Is “He Began Shrieking ‘Glenn Greenwald Is EVIL! EVIL!'”

Joe Klein in Time:

Given the heinous dust that’s been raised, it seems likely that end-of-life counseling will be dropped from the health-reform legislation. But that’s a small point, compared with the larger issue that has clouded this summer: How can you sustain a democracy if one of the two major political parties has been overrun by nihilists? And another question: How can you maintain the illusion of journalistic impartiality when one of the political parties has jumped the shark? (See pictures of angry health-care protesters.)

I’m not going to try. I’ve written countless “Democrats in Disarray” stories over the years and been critical of the left on numerous issues in the past. This year, the liberal insistence on a marginally relevant public option has been a tactical mistake that has enabled the right’s “government takeover” disinformation jihad. There have been times when Democrats have run demagogic scare campaigns on issues like Social Security and Medicare. There are more than a few Democrats who believe, in practice, that government should be run for the benefit of government employees’ unions. There are Democrats who are so solicitous of civil liberties that they would undermine legitimate covert intelligence collection. There are others who mistrust the use of military power under almost any circumstances. But these are policy differences, matters of substance. The most liberal members of the Democratic caucus — Senator Russ Feingold in the Senate, Representative Dennis Kucinich in the House, to name two — are honorable public servants who make their arguments based on facts. They don’t retail outright lies. Hyperbole and distortion certainly exist on the left, but they are a minor chord in the Democratic Party.

Doug J., with a nice Big Lebowski reference in his blog title:

Klein has made a career out of concern-trolling Democrats, praising “conservative intellectuals”, sucking up to Hugh Hewitt, and getting a boner every time The Decider gave him a new nickname. In other words, he’s a fairly typical modern day “liberal” pundit.

So, in some sense, he deserves credit for saying the obvious: that whatever flaws the Democrats have, the Republicans are completely worthless and any comparison between the two is essentially ludicrious, that say what you will about the tenets of the Democratic party, dude, at least it’s an ethos.

In another sense, it’s silly to think of Klein or others of his ilk as free-standing objects rather than as cogs in a big conventional wisdom machine. And that’s why I’m happy to see this column. Perhaps it marks the beginning of willingness of the media to speak honestly about what the Republican party has become.

Athenae at First Draft:

Who are these America-hating Democrats, Joey? Can you give me some names? If there are “more than a few,” it shouldn’t be hard. Who are the Democrats who are so enslaved to the horrible idea of civil liberties (gasp, pearlclutch, faint) that they would make the Baby Jesus cry like that? Who’s in the pocket of the teachers’ unions (those terrible people) and who’s a complete and total pacifist who thinks we should melt down every tank in existence to make swingsets for bin Laden’s kids?

I want names put to these slurs because otherwise it’s just the usual lame-ass “I’m praising Democrats, but not the pussies or anything, lest you think I am a pussy by extension” trick he and his always play in order to appear “independent.” As if it’s independent to say one nasty thing and one nice thing. As if that makes any kind of sense.

Aimai (I.F. Stone’s granddaughter) links to Athenae and has a tale to tell:

Last week I went to a cookout on the beach here with some old friends (Sausages and seafood, but no cocktail weenies!) Every year they do a cookout, and then a birthday party, and for years I’ve known that one of their guests was Joe Klein. I never mixed it up with him because, after all, well…the opportunity never presented itself and while I’m pretty aggressive in print no one really goes up to someone and picks a quarrel with them, do they?

Or maybe they do. Yes, I guess they do. I was standing at the cookout minding my own business when Klein started pontificating for the rubes on how “surprising” and “shocking” it was that Grassley, of all people, should have come out and endorsed the “death panels” lie. I walked up and said “why are you surprised?” [edited to remove typo] to which he, in best pundit debater fashion (never allow yourself to admit you were just posing!), shot back “who says I’m surprised?” I said “well, you did. You just started your lecture saying “Its surprising.”” Its not surprising, the republicans have nothing left to lose and nothing left to gain at this point outside of pleasing the crazy base and attacking Obama and the dems.”

We were off and running. He then said that its true the fringe republicans were “crazy” but perhaps no crazier than the “crazy left” under Bush. I thought he meant the “truthers” so I said “name me one person in congress or the Senate who was as crazy on any topic as these Republican senators and Congressmen who sign on to the birther and deather stuff are now?” Evading this question he said “well, Glenn Greenwald is crazy—he’s a civil liberties absolutist.” Now, me, I come from a long line of civil liberties absolutists so I said “I admire Glenn Greenwald’s work immensley but it must be very embarrassing for you, of course, because he’s been eating your lunch for years.” (!) I think this must be something of a sore point for him. He began shrieking “Glenn Greenwald is EVIL! EVILl!..do you know what he did? He “sicced” his blog readers on my EDITOR and she was going through a DIVORCE at the time.” Really? I said, politely, that was very wrong, if it happened.
“We kept it very quiet” he said, backing off the claim of any real harm and, as a twofer, managing to imply that only those “in the know” had been kept informed.

People around us were clamoring to know what the debate was about so I laid it out, chapter and verse: I explained the Klein was upset because he had been caught out shilling for the Republicans on National Security Matters and on the FISA court legislation in particular and that he was still upset because he’d been held up for ridicule for his absurd statement that there was no problem with the secret Bush programs although he didn’t know anything about them. And that this extended to the actual retroactive FISA legislation, which he also said was fine but didn’t know anything about. This seemed to inflame things somewhat. Can’t see why. He began shrieking at me that he hadn’t been wrong, he’d been misled by a “democratic staffer” but really, I just began laughing at that point because “I didn’t read the legislation” like “the dog ate my homework” is rather a lame explanation for a grown man, let alone a self described journalist.

I re-iterated that I was a big admirer of Glenn’s work and that he had just received the I.F. Stone award for his excellence. That really got Klein’s goat and he started screaming that he had been one of Izzy’s readers for years and that Glenn was no Izzy, that he was crazily anti-national security which Izzy wouldn’t have been, and at any rate I shouldn’t talk about things I don’t understand and I should realize that Klein has been on the right side of every argument since the Vietnam war. Yes! I should read his stuff on the Vietnam war!”

I said that I was, in fact, one of his readers—that I read his column and his blog and that it was precisely because I did know his history, in detail, that I accepted Glenn’s critique of him, which of course has always been extensively documented and linked. And then, in what might be the piece de resistance of this little interaction, he screamed “you don’t read me! You read WIKIPEDIA! AND THAT’S LEFTIST.” He then added that he had always been anti war and that I should “read his [Klein’s] stuff from 1993.” Hmm….1993, were we at war with Iraq then? I rather thought that was a different time, and even a different president. I take it that the rationale behind that bizarre interjection is that, as far as Klein is concerned, most of this is really old history at this point and what he really wants to be talking about is health care reform.

After this the e discussion, such as it was, devolved into the usual journalistic posturing and ranting against “those bloggers” who “don’t do research” and who “don’t have editors.” (There were many other well respected journalists at this dinner but they don’t deserve to be dragged in here) to which I responded “jeezus christ on toast points you can say that to me after it came out today that John Solomon, then of the Washington Post, was writing fawning letters to the White House explaining to them how he could spin the US attorney scandal anyway they wanted? And hellooooo? Judy Miller?” Klein actually backed down on this topic and we agreed that McClatchey had done very good reporting but the main thing I took away from the discussion is that for journalists like Klein the world is divided into practitioners/insiders and totally ignorant outsiders. He was surprised that I brought up the Solomon story, or that I took seriously the Judy Miller issue, because in his world that’s really inside baseball. In fact when I pointed out how abysmal the Washington Post’s editorial page had been, under Fred Hiatt’s tenure, he and another Journalist standing nearby assured me that Fred is an “editorialist” so the ordinary rules don’t apply and I don’t need to tar the whole paper with his sins. Its as thought they imagine that each story is a stand alone piece and that there’s a hard and fast line between opinion and “fact” when every day, and every way, we’ve seen any pretense to that distinction run right into the ground. Has any adult person thought that since Media Whores Online (of sainted memory?).

Atrios

Digby:

It’s so wonderful I can’t adequately describe it. I particularly like the part where Klein screams hysterically that Greenwald is a “civil liberties absolutist!” It’s just too good.

Aimai is my hero — actually has been for a long time, but this seals it.

Big Tent Democrat at Talk Left

Glenn Greenwald combines this and another story.

Time‘s Joe Klein was at a beach party last weekend and was confronted about his recent, vague statement that “there are Democrats who are so solicitous of civil liberties that they would undermine legitimate covert intelligence collection.”  The person doing the confronting was Aimai of NoMoreMisterNiceBlog — who also happens to be the granddaughter of I.F. Stone (which ends up being relevant to the confrontation) — and she masterfully recounts the revealing and hilarious Klein outburst that ensued, during which, among other things, he accused me of being “evil,” a “crazy civil liberties absolutist”  and “crazily anti-national security.”

Much of this is just standard Klein.  He’s been “accusing” me for years of being what he calls a “civil liberties extremist” or “monomaniacal on the subject of civil liberties” — as though that’s some type of insult, when I view it as being exactly the opposite.  For reasons I recently explained — in response to to Michael Massing’s Chuck-Todd-echoing accusation in The New York Review of Books that I fail to take into account “practical considerations” when advocating various views — it’s impossible to believe in constitutional principles and the rule of law without being “extremist” and even “absolute” because that is the nature of those guarantees.

[…]

Speaking of Chuck Todd and his “30,000 feet” mentality, the superb journalist Jeremy Scahill was on Bill Maher’s HBO show on Friday night — along with Todd, Jay Leno, and Rep. Jan Schakoswky — to talk about Blackwater (about which Scahill wrote the definitive book), but Scahill used the opportunity to take Todd to task for, among other things, the comments he made in his interview with me dismissing criminal investigations as pie-in-the-sky Leftist naïveté .

[…]

Todd’s condescending responses illustrate the same point as the above episodes with Klein and Ambinder:  in the eyes of Beltway mavens, those who warned about and worked against the radicalism and lawbreaking of the Bush administration are the fringe, crazed, out-of-touch radicals.  While Todd was fiddling around with pretty colored maps and fun polling games, Scahill was courageously investigating one of the most corrupt, dangerous and lethal private corporations in the world, yet it’s Todd who understands and must solemnly explain the hardened realities of politics to Scahill, the confused and silly Leftist.

[…]

According to Scahill (via email), Todd approached him after the Maher show and the following occurred:

“Right as we walked off stage, he said to me “that was a cheap shot.” I said “what are you talking about?” and he said “you know it.” I then said that I monitor msm coverage very closely and asked him what was not true that I said on the show. He then replied: “that’s not the point. You sullied my reputation on TV.””

Media stars are so unaccustomed to being held accountable for the impact of their behavior — especially when they’re on television — that they consider it a grievous assault on their entitlement when it happens.

Sahil Kapur at HuffPo:

Scahill singled out Todd, a fellow panelist on HBO’s “Real Time With Bill Maher”, for not taking the issue more seriously. “Chuck, you called it political cat-nip to talk about the CIA and Cheney’s role in this, because it distracts from the important issues,” he said. “This is a central issue and you called it cable cat-nip.”

Todd responded by alleging that even if journalists reported more vigorously on the issue, it was unlikely that the organization would ever be held accountable. He said it would turn into “a political food fight” where “Congress would not be able to get any prosecutions done,” suggesting that Blackwater would inevitably find a way to get off the hook.

The Joshua Blog:

I think you might be the wrong business, Chuck. Telling everyone who confronts you that they’re taking a “cheap shot” – which you’ve said to me on several occasions in our email exchanges – is getting tired.

Perhaps you should take what people are accusing you of doing, or not doing, a little more reflectively. It might make you a good journalist some day. We all had such high hopes for you. What the hell happened? That, was a cheap shot.

UPDATE: Joe Klein responds:

Twice in the past month, my private communications have been splashed about the internet. That such a thing would happen is unfortunate, and dishonorable, but sadly inevitable, I suppose. I ignored the first case, in which a rather pathetic woman acolyte of Greenwald’s published a hyperbolic account of a conversation I had with her at a beach picnic on Cape Cod. Now, Greenwald himself has published private emails of mine that were part of a conversation taking place on a list-serve. In one of those emails, I say that Greenwald “cares not a whit for America’s national security.”

I’d like to quote here from a subsequent email on that thread, which Greenwald hasn’t published, in which I explain why I have such strong feelings about Greenwald:

“For the past several years, Greenwald has conducted a persistent, malicious campaign to distort who I am and where I stand. He is a mean-spirited, graceless bully. During that time, I have never seen him write a positive sentence about the US military, which has transformed itself dramatically for the better since Rumsfeld’s departure (indeed, he ridiculed me when I reported that the situation in Anbar Province was turning around in 2007). I have never seen him acknowledge that the work of the clandestine service—performed disgracefully by the CIA during the early Bush years—is an absolute necessity in a world where terrorists have the capability to attack us at any time, in almost any place. Nor have I seen [him] acknowledge that such a threat exists, nor make a single positive suggestion about how to confront that threat in ways that might conform to his views. Therefore, I have seen no evidence that he cares one whit about the national security of the United States. It is not hyperbole, it is a fact.”

I am not a religious reader of Greenwald–he does go on, and on–and it’s possible that I missed extensive posts in which he praises the Armed Forces or makes positive suggestions about how to track possible communications between terrorists abroad and their confederates here. But I sort of doubt that. What I have seen from him, ad nauseum, are intemperate attacks in which he questions the character of–no, it’s worse than that: he slimes–anyone who has the temerity to disagree with him.

I agree with Greenwald on some things, and appreciate his insights on others. But he is a thoroughly dishonorable person–as he proved by releasing my private emails–and, when it comes to his oft-trumpeted belief in the right to privacy, a stone hypocrite as well.

UPDATE #2: John Cole

UPDATE #3: Glenn Greenwald responds to Klein. Aimai responds to Klein

Dday

Michael Calderone at Politico

Tom Maguire

UPDATE #4: Jason Linkins at Huffington

Two Ta-Nehisi Coates posts, here and here.

We Will Be Greeted As Liberators And Showered With Hot Wings

The Bush administration debated sending troops to the Buffalo area. New York Times article here.

The Buffalo News:

Cheney and others had argued that using the military on domestic soil against al-Qaida was legal “because it served a national security, rather than a law enforcement, purpose,” the Times reported.

“The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” an Oct. 23, 2001 Justice Department memorandum said. The memo was declassified earlier this year.

While those in favor of using troops in Lackawanna cited the memo, other Bush aides were dead set against using the military on domestic soil.

“What would it look like to have the American military go into an American town and knock on people’s door?” a former official in the debate told the Times.

Lackawanna Police Chief James L. Michel agreed that keeping troops out was a good idea. “If we had tanks rolling down the streets of our city, we would have had pandemonium down here,” Michel told the Times. He could not be reached by The Buffalo News Friday.

High level Bush aides were among those who opposed the proposed military maneuver, including Condoleeza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division, the Times said.

Glenn Greenwald:

Today’s NYT report is the first which reveals that high-level Bush officials actively considered and even advocated that the power to use the military to arrest American citizens on U.S. soil be used.  In this instance, Cheney and Addington argued that the U.S. Army should be deployed to Buffalo to arrest six American citizens — dubbed the “Lackawanna Six” — suspected of being Al Qaeda members (though not suspected of being anywhere near executing an actual Terrorist attack).  The Cheney/Addington plan was opposed by DOJ officials who wanted domestic law enforcement jurisdiction for themselves, and the plan was ultimately rejected by Bush, who instead dispatched the FBI to arrest them [all six were ultimately charged in federal court with crimes (“material support for terrorism”); all pled guilty and were sentenced to long prison terms, and they then cooperated in other cases, once again illustrating how effective our normal criminal justice and federal prison systems are in incapacitating Terrorists].

All that said, the Bush administration did use a very similar power when it dispatched FBI agents to arrest U.S. citizen Jose Padilla on American soil (at Chicago’s O’Hare Airport), but then very shortly thereafter transferred him to military custody, where he was held for the next 3 years with no trial, no charges, and no contact with the outside world, including lawyers.  The only thing distinguishing the Padilla case from what Cheney/Addington argued be done in the Lackawanna Six case was that the military wasn’t used to make the initial apprehension of Padilla.  But Padilla was then transferred to military custody and held on U.S. soil for years in a brig, incommunicado and tortured, with no charges of any kind (another U.S. citizen, Yaser Hamdi, was treated similarly until the Supreme Court ruled he was entitled to some sort of hearing, after which he was sent to Saudi Arabia).

Spencer Ackerman:

So what did the Bush administration do besides consider the novel ways in which it could break very clearly written laws? It’s not clear that you can’t use the military in a variety of capacities inside the United States. But it’s very clear, thanks to Posse Comitatus, that you can’t use the military in the United States for law enforcement. Somehow this distinction was lost on Dick Cheney, who in 2002 urged George Bush to send soldiers to New York to arrest the suspected sleeper cell called the Lackawanna Six.

[…] In the end this case is academic. Bush did the right thing, in the sense that me not bludgeoning my beloved dog to death is the “right thing.” But I was having dinner with friends yesterday and we got to discussing a circumstance I’ve been tossing around called What Makes Us More Like A Banana Republic. Is it BR-like to have a gang in power that breaks a lot of laws and then gets prosecuted for it by the opposing political party when it wins power? Whatever the merits of that, we’d have to stipulate that it’s pretty fucking problematic as a precedent, as it guarantees retaliation and the slope slips for the law to slouch into the land of pretext. But is it more BR-like to have the gang face no legal sanction, sending the message that the lawful course of action is just one policy option among many?

Flopping Aces:

Ooooh…..they “debated“…in 2002….Scary, scary stuff.

[…] So what?

Like the reportage of the CIA plan that never became operational (imagine…plotting to assassinate those trying to kill Americans- what was Darth Cheney thinking?!), what’s the purpose of the story, here?

Rabid Cheney Derangement Syndrome.

Jeralyn at Talk Left

Andrew Sullivan

What interests me here is the fact that the task was easily within the capabilities of the FBI who did the job. What Cheney was doing here was making a point: that he believes that the president can impose the equivalent of martial law inside the country at any moment he feels it’s necessary, even if it isn’t. What Cheney was about was making a point about his own untouchable power outside the constitution to wage a war, even in America itself against American citizens. Remember also that Cheney strongly believes in the power of torture as well – as integral, as he has put it, to American constitutional practices.

Wonkette

D-day:

It’s not that I disagree that this was brought up as an option, it’s the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution’s chief beta-tester (“testing the Constitution” is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration – right up until the moment that Eric Holder started talking seriously about prosecutions that didn’t involve him, that is, then he slithered back into the undisclosed location – Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus’ folks, and one by one all of these articles showing how he wasn’t SO bad – he didn’t want to use the military in American cities, after all! – keep popping up, using anonymous sources. It’s a nice kickoff for the library.

It May Be A Weird Institution, But It’s Our Weird Institution

Matt Y notes that Felix Salmon notes two posts. David Roberts at Grist (on cap and trade):

Republicans have settled on a strategy of blanket opposition to both the health care and climate legislation. This obviously isn’t in the best interests of the country; it’s not even obviously in the narrow self-interest of many Republicans. Nonetheless, a combination of increasing ideological rigidity, lack of new ideas, and sheer cussed habit has taken the Right completely out of these debates, except as rock-throwers and gear-grinders. They’ve decided that Democratic successes on either of these major initiatives could fuel further electoral losses, and that’s their worst fear.

It didn’t have to be this way, and many people I talked to evinced genuine surprise at how it’s turned out. The climate bill strategy, for instance, got rolling in December, way back pre-Obama stimulus plan. It was designed around the assumption that in the wake of Obama’s historic win and efforts to reach out across the aisle, a few Republicans could be peeled off.

That didn’t work out. And it can’t be overstated how much unified Republican opposition is shaping things. The debate is entirely between Democrats, entirely along regional lines, and “moderate” Democrats (i.e. those hailing from carbon-intensive districts) have been accorded enormous power. Witness Boucher’s triumphs in the House.

In the Senate, there are maybe two Republican yes votes—the last moderates standing, Olympia Snowe and Susan Collins from Maine. That means to get cloture, Dems can lose no more than two votes from their own caucus. Meanwhile, there are far more than two senators on the fence (at best) or likely nos (at worst): Mary Landrieu (Louisiana), Evan Bayh (Indiana), Ben Nelson (Nebraska), Blanche Lincoln and Mark Pryor (Arkansas), and several others.

And John Gapper at Financial Times (on financial regulation):

The US administration has clearly decided that it simply cannot get any large-scale consolidation of regulation through Congress, given the vested interests involved. But that makes its response to the financial crisis seem more like a whimper than a bang.

Salmon then says:

How did Obama manage to spend all his political capital so quickly? Did it all go on the stimulus bill? Wasn’t the whole point of bringing Rahm in as chief of staff that he could work constructively with Congress to pass an ambitious agenda? And isn’t Obama himself the first president since JFK to have entered the White House from the Senate? I’m not sure when everything went wrong here, but I fear that the damage is now irreparable — and that Obama’s agenda is going to be severely scaled back as a result.

To which Matt Y responds:

The American presidency is a weird institution. If Barack Obama wants to start a war with North Korea and jeopardize the lives of hundreds of thousands of people, it’s not clear that anyone could stop him. If he wants to let cold-blooded murderers out of prison, it’s completely clear that nobody can stop him. But if he wants to implement the agenda he was elected on just a few months ago, he needs to obtain a supermajority in the United States Senate.

Josh Patashnik responds to Matt:

I don’t really see how this makes the presidency a weird institution–what it means is that presidential campaigns are very strange creatures. The reality is that we have a system of government in which domestic policy is by and large set by Congress. You might think this is a good thing or a bad thing–I tend to think it’s a good thing–but it certainly isn’t a new thing; it’s the way the system has always worked. In a more rational world, presidential campaigns would focus exclusively on questions of foreign affairs, judicial appointments, how to run the administrative state, and so forth. Voters would laugh off the stage any presidential candidate pledging to reform entitlement programs or labeling herself the “commander in chief of the economy,” and no campaign would bother putting out, say, detailed proposals for health care reform. It would be almost as ridiculous as a candidate running for the House of Representatives on a platform of overturning Roe v. Wade (though, come to think of it, I guess that happens a fair amount too).

Matt responds to Josh:

I think this goes a little bit too far, but I basically agree. In particular, when it comes to domestic policy we spend way too much time discussing the ins-and-outs of candidates “plans” and too little time talking about how they envision interacting with congress. During the general election, it was extremely difficult to picture what a McCain administration would actually look like given that a Democratic Congress was essentially inevitable. And during the Democratic primary, debates between the candidates often seemed to presuppose that sheer force of will could get a health reform bill enacted. Meanwhile, I don’t recall the candidates in either the primary or the general having anything interesting to say about minor things like China.

Big Tent Democrat at Talk Left:

Yglesias has this wrong. The American Presidency is only weakened on policy when Democrats hold the office. This is, in part, because the Left Flank of the Democratic Party is incredibly ineffectual.

I once thought that the Left blogs could help to change that. But it seems there is much more interest in being Charlie Cooks and Stu Rothenbergs or in engaging in food fights with the Right blogs and Glenn Beck than in shaping the policy of the country .

Between the two posts above, Yglesias has another post up about the American system:

Now of course Texas is also a big state (though at 7.81 percent of the population it’s a lot smaller than California) and there are small states (like Vermont and North Dakota) that have two Democratic Senators. So the point here isn’t a narrowly partisan one, though the wacky apportionment of the Senate does have a partisan valence. The point is that this is an unfair and bizarre way to run things. If you consider that the mean state would contain two percent of the population, we have just 34 Senators representing the above-average states even though they collectively contain 69.15 percent of the population. The other 66 Senators represent about 30 percent of the people. If the Iranians were to succeed in overthrowing their theocracy and set about to write a new constitution, nobody in their right mind would recommend this system to them.

James Joyner responds:

Probably not — but we might have been better off recommending something like that to the Iraqis.  Some form of strong federalism or even confederalism makes a lot of sense in cases where states are comprised of geographically bound subgroupings with a strong sense of separate identity and history of autonomy.

The problem in the United States is that our current system no longer reflects the reality on the ground.  Most of us are now highly mobile with no strong sense of place-related identity.  Most Californians or New Yorkers or Virginians probably just think of themselves as Americans and only incidentally as residents of their states. This is least true, however, in the less populated states, which tend to be comprised of residents with intergenerational roots and therefore much more provincial.