Hillary Clinton

In response to Judge Vaughan Walker’s order from a hearing in early June commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgment, the attorneys filed that motion [pdf] today.

The motion opens with a bang:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

This lawsuit challenges the federal government’s warrantless electronic surveillance of plaintiffs Al-Haramain Islamic Foundation, Inc. and two ofits lawyers, plaintiffs Wendell Belew and Asim Ghafoor. By this motion, plaintiffs seek this Court’s determination of plaintiffs’ Article III standing and defendants’ liability under FISA’s civil liability provision, 50 U.S.C. section 1810.

With this motion, plaintiffs submit non-classified evidence that this Court has already determined constitutes prima facie proof that plaintiffs were subjected to electronic surveillance within the meaning of FISA. Defendants have the burden of proving the existence of a FISA warrant for that surveillance. Unless, in opposition to this motion, defendants demonstrate a genuine issue of material fact with regard to plaintiffs’ electronic surveillance, or prove the existence of a FISA warrant, plaintiffs will be entitled to a summary determination that they were subjected to warrantless electronic surveillance and thus have Article III standing.

On the question of defendants’ liability under section 1810, there cannot be a genuine issue of material fact, because the liability issues require no fact-finding at all, but are purely legal in nature: May the President disregard the requirements of FISA based on Congress’s 2001
Authorization for Use of Military Force? May the President disregard the requirements of FISA based on inherent presidential power? Is FISA an unconstitutional intrusion on presidential power? These issues are wholly amenable to resolution by summary judgment. The time has come for this Court to address them, and to decide the overarching constitutional question presented by President George W. Bush’s program of warrantless electronic surveillance: May the President of the United States break the law in the name of national security?

STATEMENT OF ISSUES

1.  Does non-classified evidence demonstrate plaintiffs’ warrantless electronic surveillance and thus their Article III standing?

2.  May the President disregard the requirements of FISA based on the 2001 Authorization for Use of Military Force or inherent presidential power?

After all the strum and drung of the past three and a half years since we learned about the illegal spying of the Bush administration, it does come down to that second question–does the executive have the authority to disregard the law? The filing, as Spencer argues, “presents a dare to the Obama administration: embrace the Bush administration’s warrantless surveillance claims, invoke a secrecy doctrine that Attorney General Eric Holder has pledged to overhaul, or allow a case challenging the merits of warrantless surveillance to win.”

“This is the culmination of three and a half years of work, over repeated attempts by the government” to shut the case down, said Jon Eisenberg, the lead attorney for al-Haramain. “There have been shenanigans by the Bush Justice Department, which were no surprise, but also by the Obama Justice Department, which has been a shock.”

In March, lawyers for the Obama administration followed its predecessor’s lead in the al-Haramain case, attempting to void the proceedings by invoking the “state secrets” privilege, which instructs judges to stop court proceedings because of potential national security concerns created by the airing of sensitive information. The original basis for al-Haramain’s case is a classified phone surveillance log that the government accidentally disclosed to al-Haramain’s lawyers and has since been recovered by the FBI. But Walker allowed the case to go forward after al-Haramain’s lawyers constructed a case using non-classified information — making no use of the so-called “Secret Document” — indicating that the Oregon-based charity was subject to surveillance….

Eisenberg said he is curious to see whether the Obama administration would actually defend the warrantless surveillance activities of its predecessor. The motion seeks to put the administration in a bind by citing numerous statements from senior officials denouncing the Terrorist Surveillance Program as illegal and the constitutional arguments for it to be dubious….

“What does Obama do?” Eisenberg said. “This is not just a question of hypocrisy. It’s a big constitutional mistake if he endorses [former Vice President Dick] Cheney’s theory of executive power.”

That the program was illegal isn’t in question. Given that al Haramain’s lawyers have seen the proof–in that classified memo that was inadvertantely provided to them by the government–it’s also not in question that al Haramain was included in that illegal wiretapping, and as bmaz points out was being surveilled during the period within the Bush administration that almost broke the Justice Department–the period punctuated by the dramatic confrontation at John Ashcroft’s hospital bedside.

This information has been well known for years. The question now is whether Obama’s Justice Department is going to continue to defend it. It hasn’t commented yet on the filing. Walker will hear arguments on this filing on September 1.

June 16: Tom Coburn praises John Ensign’s “corrective force” for going public with his affair, and asks for forgiveness on Ensign’s behalf:

Sen. Tom Coburn, R-Okla., said Ensign could use forgiveness.

“If you look at it in the light of everybody makes errors, at least he fessed up and resolved the problem with his family; so I think it speaks well of his corrective force.”

July 8: Tom Coburn’s office attacks Ensign for not having followed Coburn’s advice to go public sooner:

“Dr. Coburn did everything he could to encourage Senator Ensign to end his affair and to persuade Senator Ensign to repair the damage he had caused to his own marriage and the Hampton’s marriage. Had Senator Ensign followed Dr. Coburn’s advice, this episode would have ended, and been made public, long ago.”

July 9: Tom Coburn claims doctor-patient privilege, refusing to reveal his dicussions with Ensign about the affair, even though a day earlier, his office had done just that:

“I was counseling him as a physician and as an ordained deacon. … That is privileged communication that I will never reveal to anybody. Not to the Ethics Committee, not to a court of law, not to anybody,” Coburn said.

July 9: Despite his claim to have doctor-patient privilege, Tom Coburn goes into detail on what he says he did not discuss with John Ensign:

“I was never present when a letter was written, never made any assessment of paying anybody anything. Those are untruths. Those are absolute untruths.”

What we have here is another example of a “Godlier than thou” Republican whose first reaction was to lie, providing political cover to a political ally. Then his lies changed to protect himself. That’s certainly within the realm of normal behavior by politicians, but Tom Coburn has always claimed he was different than normal politicians.

Time and time again, Republicans like Tom Coburn prove that they can’t walk the talk. Maybe it’s time they start talking the walk.

Healthcare reform is nothing if not a wild ride these days. First, conflicting with the supposed message President Obama sent to liberal groups to lay off the pressure on Senators, Organizing for America is organizing members to pressure their Senators.

Late yesterday, Organizing for America, or OFA, blasted out an  email calling on supporters to deluge their Senators and members of Congress, Democrats included, with calls demanding that they support Obama’s “three principles for real health care reform”:

• Reduce costs
• Guarantee a choice of plans and doctors — including the choice of a robust public insurance option
• Ensure quality, affordable care for every American

Obama is reported to have said this about liberal groups: “We shouldn’t be focusing resources on each other.” If this is true, it raises the question of why his own political operation should do this, but outside groups shouldn’t…. OFA’s activities make the meme that Obama wants the groups to muzzle themselves seem pretty far fetched.

Go OFA, SEIU, DFA, FDL–the whole alphabet soup of progressive organizations and activists coalescing around health care, because it’s becoming increasingly clear that nothing but sustained, progressive pressure on the Senate can make a dent in the bubble that surrounds them, making them think that somehow bipartisanship and feeding their own and each other’s egos matters more than passing the real health care reform their constituents are demanding.

Case in point, after Harry Reid’s brief display of backbone, telling Baucus to abandon his fool’s errand of getting Grassley on board, he’s put bipartisanship back on the table.

Senate Majority Leader Harry Reid promised Wednesday not to leave Republicans out while shaping the health care bill, GOP senators said.

Sen. Olympia J. Snowe of Maine said Reid met privately with her and three other Republicans [Grassley, Enzi, and Hatch] and assured them that the GOP would be included in negotiations with the House on a final version of the legislation. “He said it would be a bipartisan, open conference” committee, Snowe said after the meeting.

Finally, health care reform stalwart Sen. Ron Wyden–who I know from a long association with him has been committed to the goal of universal health care from the beginning of his political career–is reinforcing that bipartisan pipe dream.

In an interview this week with the Huffington Post, Sen. Ron Wyden (D-Ore.) maintained that there was still “great interest in the Finance Committee for a bipartisan bill on both sides of the aisle” and he urged lawmakers to continue to pursue a collaborative path. He would not comment directly on news that Senate Majority Leader Harry Reid had urged the Committee’s Chairman, Sen. Max Baucus (D-Mont.) to drop efforts to attract Republican support. But he also didn’t hide his own preferences.

“I’m committed to the priority that the president laid out,” said Wyden. “I think the president got it right. He said ‘I want to get it done this year’ and he also indicated that his first choice is to have a bipartisan bill because he recognizes that a bipartisan bill allows the country to come together.”

Wyden deserves a lot of credit for keeping health care reform at the forefront in the last few years with his Healthy Americans Act, a bill that has garnered Republican support. Utah Sen. Bob Bennett was, and is, a cosponsor, and in the last Congress, Ron was able to get the support of more Republicans and a wide array of private stakeholders. It’s arguable that without his efforts, there wouldn’t have been as many trade associations and business organizations willing to come to the table for President Obama. That said, the changes that the Wyden bill becomes the solution–slim to none. Which is probably one of the reasons that there is bipartisan support for it–it’s a lot easier for a Republican to sign up for a bill they know doesn’t have a chance of passing.

I don’t believe that Wyden would ever stand in the way of real health care reform, or a robust public option, but I  can only hope that he’s using his very good relationship with the Republicans on his bill to try to bring them over to real reform. But the reality is Republicans aren’t going to be falling over themselves to allow the Democrats to pass this massive, historic accomplishment. That’s a reality that Wyden and the rest of the Democrats are just going to have to come to terms with.

This is one of the more convoluted stories of the week. Intelligence Appropriations is up this week, and in Republicans want to use the opportunity to further their “Pelosi lied” storyline (they only think illegal torture’s a problem if a Democrat who wasn’t responsible for ordering it might have known about it).

In order to head off this Republican effort, Intelligence Committee chair Silvestre Reyes fired off a letter to ranking Republican Pete Hoekstra, reminding him that the preponderance of evidence put the lying squarely on the side of the CIA, and that the committee had recently received information from the CIA proving that.

“These notifications have led me to conclude this committee has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to,” Reyes wrote….

“Like you, I was greatly concerned,” Reyes told Hoekstra, about what the committee learned on June 24 and another unspecified date from CIA Director Leon E. Panetta . “As you know, I have begun to take steps to gather information on the recent notifications,” Reyes wrote. “This may well lead to a full committee investigation. I believe that you share my concern, and I look forward to working on this issue with you.”

Since news of that communication broke, we’ve also learned about another letter, one from seven Democrats on the Intelligence Committee written to Leon Panetta expanding a bit on Reyes’ hints. The letter is dated June 26, two days after Panetta appeared before a closed door session with the committee.

“Recently you testified that you have determined that top CIA officials have concealed significant actions from all Members of Congress, and misled Members for a number of years from 2001 to this week.” The letter — which doesn’t explain what those “significant actions” concerned* — asks that Panetta “publicly correct” his May 15 statement that it isn’t CIA “policy or practice to mislead Congress.” TWI acquired a copy of the letter, which comes after CQ reported that committee chairman Silvestre Reyes (D-Texas) also nebulously stated that CIA “affirmatively lied” to the committee.

Sam Stein adds to the reporting that those “significant actions” were indeed related to Bush administration interrogation practices–torture.

After which, Reyes releases another statement:

I appreciate Director Panetta’s recent efforts to bring issues to the Committee’s attention that, for some reason, had not been previously conveyed, and to make certain that the Committee is fully and currently briefed on all intelligence activities. I understand his direction to be that the Agency does not and will not lie to Congress, and he has set a high standard for truth in reporting to Congress.

I believe that CIA has, in the vast majority of matters, told the truth. But in rare instances, certain officers have not adhered to the high standards held, as a rule, by the CIA with respect to truthfulness in reporting. Both Director Panetta and I are determined to make sure this does not happen again.

The men and women of the CIA are honest, hard-working patriots, and they do not deserve the distraction to their mission that this current issue has caused.

As Marcy says, who are those “certain officers” and would they “happen to be named Jose Rodriguez and/or Porter Goss, I wonder? Both of whom would fit the description the 7 members of Congress used, ‘top CIA officials.’” Maybe, but according to the letter from the seven Dems, Panetta told them in the closed-door briefing that “misleading” had continued through last month.

All of which does two things: it backs up Pelosi’s position that she was misled by the CIA when first briefed about “enhanced interrogation techniques.” It also strengthens the Democrats’ rationale for revamping the notification system of covert ops to expand it beyond the Gang of Eight to open the briefings to all members of the House and Senate intelligence committees. The limited briefings were used by the Bush administration to avoid briefing the full intelligence committees about things they should have been told, particularly warrantless wiretapping and torture.

Unfortunately, President Obama has threatened to veto the bill if it contains this provision for greater accountability and transparency–the checks and balances we’re supposed to have between the executive and legislative branches. As Marcy says,

With all due respect, Mr. President. But are you fucking nuts?!?!?!

The Gang of Eight briefing system has been a central instrument of abuse of power, by which the President does things that violate fundamental tenets of the Constitution, but gets legal “sanction” for those things by telling eight four people who are all but hamstrung to do anything about those things. And when people “lie affirmatively” to you you can’t really say that’s part of “comity” or a “fundamental compact.” The Gang of Eight briefing system has been neither an element of “comity” nor a “fundamental compact” but rather a keystone of a dysfunctional, abusive relationship that guts our Constitution.

Update: Sam Stein reports on speculation that the program at issue was Cheney’s “executive assassination ring” that Seymour Hersh discussed a few months ago.

“It is a special wing of our special operations community that is set up independently,” Hersh said. “They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. …

“Congress has no oversight of it,” he added. “It’s an executive assassination ring essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths. Under President Bush’s authority, they’ve been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That’s been going on, in the name of all of us.”

Asked if this was the basis of her letter to Panetta, Eshoo said she could not discuss what was a “highly classified program.” She did, however, note that when Panetta told House Intelligence Committee members what it was that had been kept secret, “the whole committee was stunned, even Republicans.”

This has the hallmarks of becoming a rather major scandal for the CIA. It’s a bad time for the administration to be arguing for more secrecy in intelligence matters.

Freudian slip of the day ….

File this one under INOKIYAD* (and that’s something to be proud of):

Sen. Roland Burris (D-Ill.) will not run for election in 2010–a not surprising decision given that Burris, appointed by ousted Gov. Blagojevich to fill the seat vacated by Barack Obama had never created a political organization, raised virtually no campaign cash, and faced controversy from the start.

Unfortunately for Burris, he wasn’t a Republican. Rumor has it they like their candidates to have these kind of problems.

*INOKIYAD = It’s not okay if you are a Democrat.

Happy Friday to everyone.

Photo by Pete Souza

Confirmation hearings for Judge Sonia Sotomayor’s nomination to the Supreme Court at set to begin in the Senate Judiciary Committee next Monday morning.

DNC Chairman Tim Kaine issued a statement today highlighting the broad grassroots support for Sotomayor’s nomination and announcing the release of a new web video, which features photos from across the country of people showing their support for Judge Sotomayor – often at iconic American landmarks. The DNC received thousands of photo submissions through our online Action Center. Chairman Kaine’s statement is below the video.

“Folks across the country are enthusiastically behind the nomination of Judge Sonia Sotomayor to be the next Supreme Court justice. People understand that Judge Sotomayor is exceptionally qualified – she would bring more judicial experience to the high court than anyone confirmed in the last 70 years. Her experience in the American judicial system, coupled with her inspiring life story and fierce intellect, make her uniquely qualified to serve on the nation’s highest court,” said Democratic National Committee Chairman Tim Kaine.

“Judge Sotomayor’s story is an American story of hard work and success. She will be the first Latina justice and the third female justice to serve on the Supreme Court. Americans are excited that, in confirming this highly qualified nominee, our country would make history and gain a justice with broad legal and judicial experience.”

Sotomayor’s record includes service as a big-city prosecutor. She was also a corporate litigator. Before President Clinton promoted her to the U.S. Court of Appeals for the Second Circuit, President George H.W. Bush appointed as a federal district court judge in New York. In that role, she issued an important injunction that effectively ended the major league baseball strike. In her time on the bench, Judge Sotomayor was widely admired for her intellect, grasp of legal doctrine, and commitment to the rule of law.

The party’s over for GOP leaders who have either been dissing the Recovery Act in Washington and taking credit for Recovery Act projects in their districts, or pushing outrageous falsehoods that the largest stimulus in United States history has been no help at all. That’s not how it works.

A few key facts: Every single House Republication voted against the American Recovery and Reinvestment Act. In May, the Recovery Act increased personal, disposable income by $17 billion. Last week, the Department of Education announced it was releasing $2.7 billion in aid to support state education budgets months ahead of schedule. And right now, over 2,000 highway projects are already under way and over $20 billion in transportation construction funds have been put to work. There’s absolutely no denying that without the Recovery Act our economy would be in much worse shape. According to a recent analysis by respected economist Mark Zandi, by the end of next year, the Recovery Act “…leaves the unemployment rate almost 2 percentage points lower” than it would have been otherwise.

To point: Earlier this week, the DNC released a TV ad calling on Senate Minority Leader Mitch McConnell to stop playing partisan games and start offering real solutions. Then yesterday, the DNC held a press conference call to talk about Recovery Act projects and job creation in Ohio, and released a new web video which highlights John Boehner’s (OH) extreme hypocrisy and factual inaccuracy in his claim that none of the contracts for Ohio infrastructure projects resulting from Recovery Act had been okayed. As the video’s narrator puts it: “His own state’s newspaper found that Boehner was flat wrong.” In fact, in Boehner’s district alone nearly $15 million has been authorized or awarded to recovery projects that are putting more and more Ohioans back to work everyday. You can watch the ad below.

House Democrats planned to propose a tax increase on the wealthy to pay for an overhaul of the health system, an idea the Senate has all but dismissed.