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June 08, 2007

Comments

I think if Walton didn't write 'I will give this brief all the attention it deserves' because that would have been too subtle.

Huh, first John Yoo shows up as a right wing hack of the first order, now Vik Amar appears to have similar tendencies.* What is in the water of the Professors who taught me Constitutional Law?

*he actually seemed quite liberal

"I take the fact that I, a non-lawyer, recognize five of these names"

I just can't resist guessing: Randy Barnett, Robert Bork, Alan Dershowitz, Viet Dinh, Douglas Kmiec?

Was John Yoo on vacation or what?

What I find particularly obnoxious about the hyping of this constitutional argument by Libby's defenders on the Right, is that, even if it succeeds, it is so obviously a technicality defense. The argument is, essentially, that Fitzgerald's appointment was technically improper.

Even if that's true, it doesn't mean Libby is any less culpable. Many of his lies even predated Fitzgerald's appointment. Libby's defenders are acting as if this would somehow vindicate Libby. What a joke. It's the equivalent of getting your case thrown out because the search warrant had a typo.

Gary: substitute Amar for Barnett. (I wasn't sure whether or not I'd heard of Barnett -- there are other Barnetts, could I be confusing them? -- so didn't count him.)

"Gary: substitute Amar for Barnett."

Thanks for letting me know. (I score myself 4 out of 5 in the game! ;-))

I thought perhaps Randy Barnett because besides his occasionally being quoted in the news on occasional cases, there's his blogging at Volokoh, but there you go.

Oh, that's why his name is familiar (she said, feeling very sheepish...)

Naturally, I meant "Volokh," as in the Conspiracy.

"Fitzgerald was improperly appointed" has been a favored talking point on wingnut blogs, along with "no underlying crime (Plame wasn't covert, no matter what the CIA says)" and "Libby's memory expert was improperly prevented from testifying." I imagine, if the first talking point doesn't get them what they want, they'll trot out the others.

The amicus states that Fitzgerald's appointment was improper because it gave him plenary powers equal to that of the Attorney General, for which there is no on-point precedent, the IP statute having expired. I don't know the law on this, but it seems that if there's no clear precedent either for or against, the Attorney General - as the nation's highest legal official - has discretion to grant as little or as much authority as the situation calls for. And Comey was Acting Attorney General: I don't see how the amicus brief can say an Acting Attorney General has less authority than an Attorney General since that's the whole point of having an Acting Attorney General.

I've also heard it suggested that challenging Fitzgerald's appointment on the basis of Comey's authority isn't just about this case, but is also laying groundwork to protect Gonzales from legal penalties for, among other things, his attempted end-run around Comey to get Ashcroft to sign off on the surveillance program. If a Court decides that Comey didn't really have an Attorney General's full authority, then Comey's refusal to sign off is legally meaningless.

A finding that Comey didn't have the full powers of an Attorney General would play merry hell with the whole concept of Acting Federal Official. It would mean that no one of that rank can be replaced, even temporarily, without a full Senate confirmation hearing.

That could cause some serious delays in keeping certain agencies running if the top official(s) are hors de combat for any reason. It could cause wholesale chaos if something happened (like an attack on DC, or a natural disaster, or a plague outbreak) that took out significant chunks of the government. The whole purpose of having an Acting Official procedure is to avoid that sort of thing.

Either the amicus brief is trying for so narrow a finding that it amounts to a special gift to Libby, or it's going for a wider finding upending civil service procedures altogether as a special gift to the Bush Administration.

I think if Walton didn't write 'I will give this brief all the attention it deserves' because that would have been too subtle.

Maybe he could have said,

"Thank you for submitting this brief. I'll waste no time reading it."

Oh, I doubt the writers of the amicus brief expect Walton to find in their favor. They're aiming for an appeal to a more sympathetic Court - and they're likely to find one. IIRC, the next level up from Walton has Santelle on the bench: the same Santelle who was so helpful to Ken Starr.

Sentelle, actually. David B. Sentelle.

Some background:

[...] In 1994, Chief Justice William Rehnquist -- the outspoken conservative and former Nixon solicitor general who was given the court's top seat by Reagan -- named Judge David Sentelle as chair of the Special Division. Last year, Rehnquist reappointed Sentelle, who's a crony of North Carolina's far right-wing Sens. Jesse Helms and Launch Faircloth, despite the fact that Sentelle was widely criticized for his apparent conflict of interest. The Sentelle panel had appointed Starr just after Sentelle lunched with Faircloth, who'd long been calling for the head of Starr's predecessor as Whitewater independent counsel, Republican Robert Fiske.

While the president's allies have focused on Sentelle's role in replacing Fiske, few have noted the broader changes Sentelle has wrought. "A gross misunderstanding has arisen ... as to the meaning 'independent,'" Sentelle boldly declared in 1996. The term, according to Sentelle, merely means, "independence from the administration under investigation, not an independence from the entire American political system."

Sentelle put that philosophy into effect -- not just with former Reagan-Bush Justice official Starr but with David Barrette, the independent counsel appointed to investigate HUD secretary Henry Cisneros. If anything, Barrette's "independence" is even more compromised than Starr's: He's a developer and GOP activist who garnered scads of HUD contracts under Reagan.

Throughout the Clinton administration, Rehnquist and Sentelle have made it clear that independent counsels are likely to be appointed from the most hostile and ethically compromised corners.

That was David Shapiro's opinion, anyway. He's not a fan. I'm fairly sure that the Federalist Society takes a more positive view.

Thank you Judge Walton.

Don't feel offended, hilzoy, that I thought you were a lawyer, or, at least, a graduate of a law school.

More fun: "If WWII was an MMORPG". Excerpt:

"*Roosevelt has left the game.*
Hitler[AoE]: wtf?
Eisenhower: sh1t now we need some1 to join
*tru_m4n has joined the game.*
tru_m4n: hi all
T0J0: hey
Stalin: sup
Churchill: hi
tru_m4n: OMG OMG OMG i got all his stuff!
tru_m4n: NUKES! HOLY **** I GOT NUKES
Stalin: d00d gimmie some plz
tru_m4n: no way i only got like a couple
Stalin: omg dont be gay gimmie nuculer secrets
T0J0: wtf is nukes?
T0J0: holy sh*tholysh*thoylshti!!!111
*T0J0 has been eliminated.*"

"Was John Yoo on vacation or what?"

Perhaps a weeklong trip to Burma for the child-testicle-crushing festival?

A finding that Comey didn't have the full powers of an Attorney General would play merry hell with the whole concept of Acting Federal Official. It would mean that no one of that rank can be replaced, even temporarily, without a full Senate confirmation hearing.

That could cause some serious delays in keeping certain agencies running if the top official(s) are hors de combat for any reason. It could cause wholesale chaos if something happened (like an attack on DC, or a natural disaster, or a plague outbreak) that took out significant chunks of the government. The whole purpose of having an Acting Official procedure is to avoid that sort of thing.

CaseyL, this is even all the more surprising considering that Bush implemented HSPD 20 and NSPD 51 to do exactly this in case of a "Catastrophic Emergency", defined in section 2(b) as:

"Catastrophic Emergency" means any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions;

It seems to me that this is a scary document that has received almost no media attention whatsoever. With this authority, Bush doesn't even need the Senate.

If anyone is interested -- and apologies to anyone who is not -- I write about another huge Bush admin foreign policy blunder here; it's Iran, so it's really not very important.

Some other new posts from today below that one. Conceivably folks might like to tell their Congressional critters to support subpoenas to get at what the NSA/White House "Program" is, exactly.

"It seems to me that this is a scary document that has received almost no media attention whatsoever."

Could you perhaps quote precisely which passage, or mention which point, you have in mind as scary, please?

The only part you quote is the definition of a "catastrophic emergency," which by itself seems extremely non-scary.

"With this authority, Bush doesn't even need the Senate."

To do what?

"Heh. Indeed."/

Why am I not surprised? Libby being defended bad. Guantanamo thrown out good.

Hilzoy. The stuff about Fitz and the Mighty Ten is interesting, but I want to address something more mundane: The weather.

Here in Central Texas (Lee County), the weather was also very warm (93 or thereabouts) and very humid (80+%, I'm estimating); moving around outside will cause state of dripping wetness is about 15 minutes. Same yesterday, when I had to make the 25 mile drive to Austin; weather which seemed to cause just a whole lot of drivers, and walkers, to want to die before sundown. Strange stuff goin on out there. My tomatoes are doing just fine, thank you, as are the okra, purple hulled peas, cucumbers, Bell and Serrano peppers, and beans. I'm thinking you should switch to a tomatoe generally grown farther south than Baltimore.

Speaking of Baltimore, why don't you drop in to Bedrock for a cold drink? The young man who is manager there is a close relative of mine, name of Daniel. Tell him hello if you see him, from his dad.

Doran Williams: thanks. I haven't been there yet.

In other news: the BBC currently has this headline up on their main page:

"Patient sheds green blood like Mr Spock of the starship Enterprise"

"of the starship Enterprise"

That's so you don't confuse him with all the other Mr. Spocks you know.

Story here.

Amar I suspect would characterize himself as a liberal, and Dershowitz calls himself a liberal. Bork, Dinh, Kmiec and Bork are all definitely conservative; Barnett is a libertarian. The rest I don't know.

best footnote ever

"...and Dershowitz calls himself a liberal."

A liberal for torture!

But, you know, with warrants, so it's all legal.

"...and Dershowitz calls himself a liberal."

A liberal for torture!

But, you know, with warrants, so it's all legal.

'Bush implemented HSPD 20 and NSPD 51 to do exactly this in case of a "Catastrophic Emergency"'

Analysis at (I think) DK convinced me that this is a pure non-story.

Re the post title, I liked this reader comment Andrew Sullivan posted:

I think you are being a snarky ass**** about Paris Hilton - going to jail is a scary, disorienting, horrible experience. Sympathy and compassion and [sic, rf] the right attitude, not mocking joviality - especially from a Catholic. This is actually a real person we are talking about.

Just because it's an open thread and the video vaguely references princess PH, for your viewing pleasure, Nancy Grace gets owned by her staff.

(This is the kind of thing that makes me laugh out loud these days... sad but true).

I have mixed feelings about Paris Hilton. No, way, I don't. She belongs in jail. Her sentence of three weeks (counting good behavior) is apparently quite standard from that judge, for that type of infraction. She had received a great deal of leniancy already -- especially given that complying with the original terms of her suspension were trivial for one of her resources -- and it appears she did not take anything seriously until she actually entered jail.

Too often the rich are above the law. I grit my teeth when they manage to avoid justice because they can afford attorneys, endless appeals, and enough influence to avoid the consequences most would suffer.

However, I draw the line here.

My only sympathy towards her extends to the fact that she is, effectively, in solitary confinement. Even that is tempered by the knowledge that that situation is the result of her wealth and influence, else she would be in the general population like any other person sentenced to 40 days.

A minor edit: "Because they can afford attorneys" should read "Because they can afford teams of high-priced attorneys".

The resources of the rich in a legal setting aren't to be underestimated, nor the lack of resources that overstrained PDs face.

Our justice system is hardly fair, and I'm afraid I find Ms Hilton crying because it's not tilted enough in her favor to be quite vexxing.

Martha Stewart managed her six months just fine. Paris can handle 23 days, even if she's forced to choke down low-class food like hot dogs.

xanax: you made my day. Seriously.

xanax: tee hee hee. Justice finally makes an appearance on Nancy Grace.

Paris Hilton: yeah, she's a spoiled rich kid who seems never to have taken anything seriously until she was sent to jail. These days, the criminal justice system seems to be, in certain quarters (here, Libby) the sole enforcer of the idea that you cannot, in fact, get away with literally anything if you have a good enough PR machine.

That said, since I didn't manage to escape the coverage entirely, I did hear people say that in LA county, it's normal to serve only 10% of one's term, because of overcrowding, and that there is, therefore, a colorable argument that she is being treated unfairly. I have no idea whether or not this is true, but I can easily imagine that it is.

If so, it's the result of two pieces of incompatible idiocy on the part of California voters: three strikes, which creates a huge need for more and more and more prison space, and Proposition 13, which deprives California counties and municipalities of the resources they need to build those prisons. If in fact people in LA only serve 10% of their prison sentences, then that should be taken as a stunning indictment of CA politics. Oddly, though, I haven't seen that angle get much play. Though in fairness that may be because I have been trying to avoid this story.

I think it's a good idea to withhold judgment on Hilton's early release until we know more about the reason for the sheriff's decision. He doesn't strike me as someone who would do that frivolously, but I don't really know.

I'm of fan of Hilton either, but just because she is seriously unlikeable it doesn't follow that the release was unjustified.

this is a pure non-story

I don't think so

Robert Bork who is also asking for $100k and punitive damages in a slip and fall case. Bastard.

And don't even get me started on Dershowitz.

novakant, see here for the DK link to the TPM reporting on those directives, which can be summarized as "non-story".

Excellent point about the Amici brief attacking the foundations of all acting officials. Perhaps not a productive line for this administration to pursue. Working hard to avoid critical confirmation hearings, even when they had the votes to get their way, this administration has used Acting heads far more than any other.

It has also left posts empty or "filled" them by giving the responsibility to someone who'd already been confirmed and had another job to do, thereby doubling the work of that official (or getting half of each job done, multiplying the inefficiency and leading to incompetence) for the same pay. Just like today's private sector.

I realize that this is a reference that nobody's gonna get, but I presume that when De De Troit sang about "The frozen City of Baltimore," she wasn't referring to June.

Ah, what the hell, I enjoy typing out lyrics, so here we go:

Let's forget this and that again
And talk about the nightmare, about the nightmare
The frozen city of Baltimore
Those slippery terrors, traditions, affairs
What do you think you think you're dying for
Change your name, change your name
Friends will call you famous doctor
Jim Jimmy, impossible crime
How fast three minutes seem to pass these days
When all your sacrifices haven't changed a thing
How fast your life will seem to disappear away
When you finally wake up from your sleep
Wake up
Famous doctor, that's what they'll say
But you're blind
You just don't see, you just can't see
Famous doctor, that's all you've got
That's all you've got to show, but anyway
In the UXA, why did you die today
In the UXA, why did you die today

The amount I saw in Bork's case against the Yale Club (NYC, I think), was one million, relating to some sort of claimed slip and fall or "unsafe" walkway or stairs problem. Now that he's getting on a bit, he's not so rabidly dismissive of those sorts of suits. Perhaps that was the amount claim as punitive damages.

Never mind. Sounds like a hissy fit, or payback for another perceived slight. Bork seems to be reinvigorating the notion that was already long in the tooth when Henry Kissinger revivified it: "Academic politics being so fierce because the stakes were so low."

check out digby's latest. Isn't this thing definitely going to the DC court of appeals? The court with janice rogers brown, John robert's replacement, Sentelle, etc..

If you think it is hot in Baltimore now, wait until the end of july, beginning of august. i was staying on the third floor of my friend's rowhouse in Little Italy when one of the 100+ heat waves hit. I still haven't recovered.

And my tomatoes are booming

"If in fact people in LA only serve 10% of their prison sentences, then that should be taken as a stunning indictment of CA politics."

You probably saw the big front page story in the Times (why I didn't blog it) the other month on California's luxury jails for the rich, I suppose.

"...and Proposition 13, which deprives California counties and municipalities of the resources they need to build those prisons."

This isn't entirely so, given that many prisons built in recent decades are built with private money for profit.

Corrections Corp. of America proudly boasts that they alone:

[...] # CCA has approximately 72,500 beds in 65 facilities, including 40 owned facilities, under contract for management in 19 states and the District of Columbia.
# The company manages approximately 70,000 inmates including males, females and juveniles at all security levels and does business with all three federal corrections agencies, almost half of all states, and more than a dozen local municipalities.
Business has been booming:
[...] In 1987, approximately 3,122 inmates out of 3.5 million inmates were confined in private corrections facilities in the United States. By 2001, the total United States inmate population had swelled to a staggering 6.5 million inmates—123,000 of whom were confined in private facilities. This 4,000% increase in the number of prison beds in private hands was fed by the concomitant 90% growth in total inmate populations in the United States as a whole. (BOJS, 2001). Currently, over 32 states and Puerto Rico have formed contacts with corrections corporations.
That was in 2002.

California only had 24 private prisons, though, compared to Texas' 43, in 2001.

[...] An analysis of prison privatization published earlier this year by the U.S. Bureau of Justice Assistance found that rather than the projected 20 percent savings, the average savings from privatization was only about 1 percent. Most of that was achieved through lower labor costs. The study found private facilities' small savings result from having staffing levels about 15 percent lower than in public facilities.
Because, you know, most state prison facilities coddle their prisoners with too many personnel.

Overall, California's prison system, like pretty much all, if not all, the states prison systems sucks.

this is a pure non-story

I don't think so

So what's the story?

Let's hope Paris makes a big donation to a prison reform advocacy group when she gets out.

Heh heh.

"Say NO to two-legged walking creatures with sharp sticks.
Keep the land bridge closed!"

That's a classic hil. Thanks.

OT, and depressing, but remember the Uighurs released from Guantanamo?

OT, except that Viet Dinh was in the same room, arguing for the DC voting rights bill (and making me a little queasy for being on the same side): my appearance on the CBS Evening News.

KC: cool!

Jon Swift on Paris Hilton.

I only recognize the names of three of those who signed onto this "brief"--Barnett (who blogs on the Volokh site), Bork (of Saturday Night Massacre fame) and Dershowitz (of "diarrhea of the mouth, constipation of the brain" fame)--but it seems to me that the question of the validity Fitzgerald's appointment as special prosecutor should have been raised at the beginning of Libby's trial, not (apparently) at the end of trial and sentencing. Scooter's defense apparently waived that argument by not raising it at the beginning of trial.

Scooter's defense apparently waived that argument by not raising it at the beginning of trial.

Scooter's defense did some very fancy dancing at the beginning of the trial. They asked the judge to approve certain testimonial and evidentiary rules based on the implicit understanding that Scooter would testify; the judge agreed. Of course, Scooter didn't testify - and the defense then claimed those same testimonial and evidentiary rules prevented them from defending him fully, because he didn't testify.

Some commentators saw right then that Scooter's team was setting up grounds for appeal. Apparently, they knew he was going to be convicted, and most of their strategy has been to set up grounds for reversal on appeal.

Today on one of the bloviating heads shows Bill Kristol was doing the "poor little Scooter" thing (no surprise). The thing I don't understand is why a man who has been wrong on nearly every prediction he has made and is clearly utterly amoral is still on TV. Do they need really someone to represent the unrepentant evil line?

I am not sure if anyone is going to be on this post anymore, as I was away from my computer this weekend and didn't have a chance to respond to Gary and Rilkefan's posts about why I find it troubling the this is a "nonstory."

First, as Gary points out, I did not do a good job linking to the most relevant passages of the directives. And, Rilkefan and Gary both point out that I chose my language poorly; given the choice between covering "disappeared" people and these directives, I would certainly choose the former as a more alarming development to those who value democracy.

The one point where I think that this is a true story is the fact that it took the Administration six years to come up with this. The TPMuckracker article Rilkefan alludes to says:

Executive power expert, NYU law professor David Golove, also sent me an email saying the directive didn’t appear to be a power grab.

While I think that my language, both here and at my own blog was probably too alarmist for my point to be clearly articulated (note to self: proofread/edit before posting), I think that the bigger issue is that the Administration has been disparaging the Clinton Administration for six years over the "failures" that led to the 9/11 and has been fear-mongering us into wars, decreasing our civil liberties with real power grabs (i.e. Patriot Act), and, yet, didn't revise Clinton's continuity directive until six years after the war. If, as Prof. Golove says, it is a good idea, I don't understand why it took so long to come up with -- especially after Bush and Ridge worked so hard to tell the American people they need to come up with these plans to keep us scared.

Like most things, this Administration is simply inconsistent between its rhetoric and its actions (accountability for teachers but not for the war, fiscal responsibility for individuals but not our government, etc.) The fact that the press, and or the progressive community, doesn't pick up on this as a way to show how the Emperor has no clothes, is what I guess I found scary disturbing.

Lots more detail on yet another massive case of politicization over competence as regards immigration judges.

"The one point where I think that this is a true story is the fact that it took the Administration six years to come up with this."

I appreciate your coming back to answer, but I'm afraid I've yet to understand what specifically you are alarmed by.

What is the "true story" that you refer to?

Exactly what in the document indicates what, precisely, that we should be alarmed by?

I'm perfectly prepared to believe I'm missing something, but I've read a fair number of Presidential Directives, and quite a lot on COG, and I simply don't understand what it is you think is we should be concerned about regarding the document. Please quote it, and perhaps say what we should be alarmed about. Thanks.

"If, as Prof. Golove says, it is a good idea, I don't understand why it took so long to come up with"

Policies and procedures are always being updated. This is an indication we should be alarmed about? The simple fact that COG procedures were updated, even though nothing alarming can be found about it? Is that all that's left here?

(Apologies for not having put this in the previous comment.)

Gary, I think that I am doing a terrible job trying to explain this, so if you feel the need to abandon ship, please do so...

I agree that policies are always being updated, as you suggest. I guess what is not so much "alarming" as puzzling is, if the old policies of national security were so bad under the Clinton Administration, why did it take the Administration six years to fix them? If this was a glaring hole in our nation's security, then it should have been addressed right away rather than waiting six years.

Now, my understanding could be wrong in that, the last major review of this policy might not have been under the Clinton Administration. If that is true, then what you said "Policies and procedures are always being updated," is absolutely correct and please accept my sincerest apologies for confusing this whole issue =)

"Now, my understanding could be wrong in that, the last major review of this policy might not have been under the Clinton Administration."

I'm afraid your understanding is wrong. Post 9/11, COG procedures have been updated several times, in various ways. Here's a sample 2006 Arkin article about it; there's plenty more on the topic out there. Here's a piece from last month on NSPD 51.

COG updates aren't anything new; they've been going on since before I was born, since at least the early Fifties, if not even earlier. 9/11 made for a lot more of that. This doesn't mean that Seven Days In May is about to happen, even with the President executing the coup.

So far as I can tell, some people are deeply alarmed that this document moves more responsibility for coordination in the case of a "Catastrophic Emergency" to the White House from Department of Homeland Security. Why this indicates anything even potentially sinister I still can't quite figure out: if it's the Bush WH, we can likely count on both the WH and the DHS to be incompetent at some crucial moments, so what's the dif?

As an indicator of a Cunning Plot to declare martial law and invalidate the 2008 election, it's, ah, a touch lacking in substance.

OT: interesting news for those of us heading to pakistan this summer. Interesting in the Chinese proverb sense...

"Since September 11, 2001, the U.S.'s Pakistan policy can be summed up in two words: Pervez Musharraf. But within the U.S. intelligence community, and in Pakistan, there's a growing belief that the U.S.-friendly military dictator's days are drawing to a close -- and possibly within the next few months."

There's certainly plenty of evidence to point to that events are continuing to narrow his options and control, subsequent to the Chaudhry affair. Things don't tend to start going uphill again in these sort of losing-control-and-power dynamics, historically. Rather, they tend to snowball downhill, in a punctuated way.

Gary, thank you for clearing up my misconceptions - it is great to have someone point out such mistakes in such an engaging and considerate way (part of the reason I love coming here)!

Also, following our discussion, I have updated my post accordingly...

"it is great to have someone point out such mistakes in such an engaging and considerate way"

Actually, I was afraid I'd been a little abrupt or harsh sounding; I'd meant to include some additional words about how it's wise to be somewhat suspicious, and how this administration has given us far too much reason to be, and how understandable such suspicion therefore was, and so on, but kinda forgot to do that before I hit "post" last time. So: nice of you to say, but if I did seem at all unsympathetic, sorry about that.

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