Bush Appointee To Bring Hostility, Feathered Bangs to Position

Similar to how he appointed John Bolton, a man who was know for his active dislike of the United Nations, as United States Ambassador to the United Nations, Bush has appointed an avid critic of birth control as chief of family planning programs at the Department of Health and Human Services, Susan Orr. She will be in charge of about $283 million in annual grants to provide low-income families and others with contraceptive services, counseling and preventive screenings.

As noted in this Washington Post article:

In a 2001 article in The Washington Post, Orr applauded a Bush proposal to stop requiring all health insurance plans for federal employees to cover a broad range of birth control. "We're quite pleased, because fertility is not a disease," said Orr, then an official with the Family Research Council.

So if she's not going to be spending all that money on birth control, what should she spend it on? My vote goes to booze and hotel rooms.

New Pick for AG Less Likely To Take Advantage of People Doped Up in Hospital

Today dubya nominated retired federal judge Michael B. Mukasey as Gonzo's successor at the top of the Department of Justice. Most of the articles I have read paint him as a "compromise" choice and a concession to Democrats and all those critical of the Britney Spear's VMA performance that this administration has become (analogy shamelessly stolen from Jezebel).

While I agree that he seems to be less bat shit crazy, I'm not totally sold. As a federal judge, he did seem to adhere to the constitution. He is also the judge that signed the material witness warrant of Joseph Padilla and was involved with his case while it was in New York. At one point during that case, he siding with Padilla over the government.

Since he has retired, however, he has not hesitated to wax poetic (see op ed piece here) about how the war on terror merits different standards for criminal convictions and how our system is not prepared for this on-going struggle. For example, at one point in his op ed, he said:

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
(emphasis added).

So it seems that when he did adhere to constitutional standards in his courtroom he did it somewhat begrudgingly. Which, to be sure, is an improvement. But now that he is a position of a policy maker, I don't think he will exhibit the same impartiality he once had as a trial judge. While he seems competent (again, an improvment), I do not believe that he really is a concession to democrats or will significantly change the administration's stance on the war on terror.

Bedtime for Gonzo

This week in "It's about effing time," Attorney General Gonzales has resigned. I think it is fitting that two years since Katrina and the shameful discovery that Bush had appointed a friend with no experience as the head of FEMA, that we once again learn the price of nepotism and of appointing people based on loyalty.

While Gonzales has impressive credentials (unlike many other appointees and attempted appointees like Harriet Miers), his loyalty to this administration was dangerous to us all. The head of the Department of Justice must have the independence to question the legality of executive branch decisions, not rubber stamp and advocate them. Whether it was the questionable firings of some of the U.S. Attorneys, or the highly suspicious hospital visit to get Ashcroft's ok for the domestic surveillance program, Gonzales has been no friend to the office or the Constitution.

¡y adiós muy buenas!

SCOTUS Changes Mind, Will Hear Gitmo Detainee Case After All

In a surprising and rare move, the SCOTUS ended their last week (which was not absent of doosies handing down significant decisions on both the death penalty and affirmative action), with a doosie. The Court, which had previously refused to grant cert in the Gitmo detainee habeas cases in April (previous post), today changed course and decided to grant cert.

CERTIORARI GRANTED
06-1195 ) BOUMEDIENE, LAKHDAR, ET AL. V. BUSH PRESIDENT OF U.S., ET AL. ) 06-1196 ) AL ODAH, KHALED A. F., ET AL. V UNITED STATES, ET AL. The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. As it would be of material assistance to consult any decision in Bismullah, et al., v. Gates, No. 06-1197, and Parhat, et al., v. Gates, No. 06-1397,
currently pending in the United States Court of Appeals for the District of Columbia Circuit, supplemental briefing will be scheduled upon the issuance of any decision in those cases.

One news article guesses that it was one particular affidavit filed last week that made the difference.

An Army reserve officer and lawyer who played a key role in the enemy combatant hearings at Guantanamo Bay says tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees, often without any specific evidence. The officer's affidavit, submitted to the Supreme Court last Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.
From Yahoo News.

If this is the information that changed their minds (meaning Kennedy and Stevens), there might still be hope. But it's going to be a while. I'm sure this comes as only mild reassurance to those detainees who have been at Gitmo for over five years now.

UPDATE

I just learned over at Abovethelaw that this is the first time in SIXTY YEARS that they've changed their mind on granting cert. Wow.

Bush Not Much for Bread, Circuses

Here's an article from the Houston Chronicle

May 21, 2007, 2:04PM
Bush defends Gonzales, dismisses plan for no-confidence vote
By BEN FELLER Associated Press Writer
© 2007 The Associated Press CRAWFORD, Texas — President Bush insisted on Monday that embattled Attorney General Alberto Gonzales still has his support and denounced Democratic plans for a no-confidence vote as "pure political theater.

Political theatre you say? Hmmm, seems to me you've become quite the thespian yourself!

From the famous Mission Accomplished Photo Shoot....


...to having the parents of a fallen American Soldier do a cameo at the state of the union address back in 2005.
Or this little gem


Cuz that's a genuine and substantive way to deal with Malaria, right?

The "A" Must Stand for Ambivalence

In most areas, the current administration has pushed the envelope when it comes to the power of the executive. They have claimed that the president has the authority to arrest and detain American citizens he deems as "enemy combatants" indefinitely. They have argued that it could authorize the torture of detainees , and then seems it did just that in secret prisons abroad. They denied detainees in Guantanamo the right to habeas corpus and stripped them of the protections provided by the (congressionally ratified) Geneva Conventions. They argued that despite FISA, the NSA had the right to decide who and when to wire tap without the oversight provided by the FISA court. The Bush administration and the executive branch he heads have been nothing if not consistent. He is, at the end of the day, the decider.

So how about the Environmental Protection Agency? The government organization created to protect and preserve the environment? Perhaps it would pursue its mission statement as zealously as its executive branch cousins.

No such luck.

When a group of states and private organizations petitioned the EPA to regulate greenhouse gases, the EPA responded (contrary to the opinion of the two previous General Counsels) that it was not authorized under the Clean Air Act to regulate greenhouse gases, and that even if it were, any such regulation would not be a prudent course of action. This led to a court challenge, and finally the SCOTUS opinion issued earlier this month in Massachusetts v. EPA, in which the Court held that the EPA does have the statutory authority to regulate greenhouse gases and that if it declines to do so, it must provide a suitable reason grounded in the language of the Clean Air Act itself.

You don't even have to be a lawyer to be outraged at this. The "Environmental Protection Agency" was arguing that it did not have the power to regulate polluting gases being released into the air under a statute called the "Clean Air Act?" Fer fuck's sake. If you can't do this, what the hell ARE you authorized to do?

Narrowly Missed: Harriet Miers' incredible judicial objectivity

Remember Harriet Miers? Ex-Supreme Court nominee Harriet Miers? A.k.a. the smartest person within 30' feet of shrub's office?

Well, as it turns out she was the one who started the ball rolling in the recent wave of US Attorney firings. In fact, she originally suggested in February 2005 (as White House Counsel) that all 93 of the US Attorneys should be fired at once. See article form SFGate. That sounds like a great way to fight terrorism! It also sounds like a great way for Karl Rove to get his 'ol buddy Tim Griffin in the Arkansas vacancy.

This seems to fly in the face of the White House's explanation now, that 1) the White House wasn't involved in the terminations and that 2) the final 8 US attorneys were fired only because of work-performance issues.

There has been some suggestion that the San Francisco's own Kevin Ryan was sacrificed because he was vigorously investigating and prosecuting the stock-option back dating cases in the valley of silicon (article at valleywag). Something must have happened though for the powers to change their mind though, because he was originally on the list of "Stellar performers," according to this NYT article.

Federal Courts lack jurisdiction to hear (pending) habeas petitions of Gitmo detainees

To those of us that think the Bush Administration is shameful in trying to detain foreign nationals indefinitely and (arguably) in violation of international law in a place specifically chosen so that federal jurisdiction would be a tricky issue, a blow was delivered today by the D.C. Court of Appeals. In today's 2-1 decision, the panel held that 1) the Military Commission Act stripped federal courts of jurisdiction over habeas petitions, and that there is no Suspension Clause violation as the right of habeas does not apply to aliens outside the United States (i.e., there are no constitutional problems with the MCA).

I agree with the first part of the decision that Congress was unusually clear and intended to have the MCA apply to pending habeas petitions. The detainees arguments might have provided an escape route for a panel that was looking for a way to rule in their favor, but it was quite a stretch.

I think the bigger question here though is whether Congress can strip federal courts of habeas jurisdiction. Here, I disagree with the D.C. Circuit. While the Constitution might not extend to aliens outside the territorial United States, it should apply to aliens involuntarily detained within the United States. Saying that Guantanamo Bay is not within the sovereign territory of the United States is absurd (as was recognized in Rasul). And allowing the executive to evade federal jurisdiction through selective placement of prisoners is a horrific precedent.

I simply don't understand this footnote 11 in the majority opinion:

The text of the Suspension Clause also does not lend itself freely to extraterritorial application. The Clause permits suspension of the writ only in cases of “Rebellion or Invasion,” neither of which is applicable to foreign military conflicts.

So the logical consequence of that observation is that Congress cannot suspend the writ absent "Rebellion or Invasion." How does this support the proposition that Congress can suspend the writ.

The dissent makes an interesting distinction between individual rights contained in the bill of rights as compared to the constraints on Congressional Power contained in the Constitution, which reminds me of international treaty law (which treaties convey individually enforceable rights and remedies and which don't). The general presumption against the extra-territorial application of US (Constitutional as well statutory I would posit) law is to respect sovereign nations. Applying our laws on foreign soil could lead to some tricky foreign policy issues (and it often does). But here, the US runs a prison on land it leases from Cuba indefinitely. For all intensive purposes, it is U.S. land. There are no Cuban authorities involved here, no tricky questions of foreign criminal law. These are people in US custody on U.S.-leased land, they should be entitled to the protection of US law and US courts.

Great posts at
National Security Advisors
Balkanization
Opinio Juris

Despite Surge in Language Skills, Congress Still Against Actual Substance of Comments

Bush: 'I'm the decision-maker' on Iraq (from Yahoo!/AP)

Yeah, I think we got the gist of that from your last civics lesson. The more things change I guess. I don't really understand the point of singling out Iranians here. I doubt the Army has a policy of checking passports before returning fire. It is well-established that Iraq has become the flame to the moths of international fundamentalists. I don't think that needlessly highlighting any Iranian national involvement right now is a good idea considering that the rest of the international community finally agreed to impose sanctions on Iran for its complete disregard for the IAEA. I'm sure it will only be a matter of time before Tehran retorts that the US is trying to further malign Iran.

Don't Let La Porte Hit You in the Ass on Your Way Out

Bolton Withdraws From UN Nomination Amid Opposition (Update4)

By Brendan Murray and Judy Mathewson

Dec. 4 (Bloomberg) -- John Bolton will step down this month as U.S. ambassador to the United Nations, as President George W. Bush conceded that opposition from Democrats would make it impossible for the envoy to stay in the job. (full story)

Woo hoo! It's about fricking time. I mean seriously. This guy couldn't even get confirmed when the Republicans controlled the Senate. Bush is trying to fault the Democratic and Republican Senators who have opposed Bolton's confirmation by saying that this is a bad time to interrupt our foreign diplomatic corps. I think that he has a point given what's going on with Iran and North Korea, but it is Bush's stubbornness that has created this situation. It was Bush who kept Bolton at his post despite the fact that the Senate did not confirm him since his nomination in March 2005. And despite the clear message of the elections a month ago, he re-nominated this guy. You can't blame other people for the problems you create yourself. Although, from what I know about this guy's upbringing, I don't believe that he was ever taught that you are responsible for the consequences of your own actions.

No Way José

José Padilla (pronounced padila, not padiya, by personal preference), a U.S. Citizen detained on U.S. soil, has now been in federal custody for about 4 and 1/2 years. He was originally detained in May 2002 on a material witness warrant, as he was accused of having (not formally charged, mind you) helped to plan a dirty bomb attack in the U.S. Two days before a district court was to rule on the validity of Padilla's continued detention under the warrant in June, 2006, Bush and Rummy changed the authority under which he was detained, now labeled him an "enemy combatant," and transferred him to a military brig in South Carolina, giving no notice to his attorneys or family.

This in turn, led to a habeas petition that was eventually turned down on technical grounds by the U.S. Supreme Court in 2004. The petition was rejected in part because it was filed in NY and not South Carolina, where Padilla was actually detained. I imagine they tried to file it in NY, rather than in South Carolina where he was detained so as to avoid the 4th Circuit and take advantage of the 2nd. Before a corrected petition could be ruled on by the Supreme Court (which had been predictably denied by the 4th circuit), U.S. authorities finally formally charged Padilla in November 2005, about 3 and 1/2 years after his initial detention and was transferred to a Miami (civilian) federal prison. He was charged with aiding terrorists and conspiracy to murder US nationals overseas; no mention of a dirty bomb was made. In fact, the indictment itself is pretty vague (indictment from ABC).

Padilla has now petitioned the court to have the case thrown out, saying that he was subjected to torture and abuse including sleep deprivation, threats of execution, exposure to fumes, etc. while in military custody. The U.S. denies the claims. The case is set to go to trial in January 2007, almost almost five years after he was first detained in Chicago.

I know this story has been around for a while, but I think that's why I felt the need to say something about it. Here, a US citizen was detained in the United States for the better part of three years with no charge and was only allowed to meet with his attorneys in March 2004. The government's position was basically that, upon the president's unreviewable determination of status as "enemy combatant" the Bill of Rights do not apply to a U.S. citizen on U.S. soil. I think the government finally got around to charging him with actual crimes just to avoid a showdown with the Supreme Court.

I think it's also interesting to note that a lot of the "alternative interrogation techniques" that Padilla complains of sound an awful lot like the ones that Bush and Cheney have been advocating are legal and useful in Gitmo and the secret CIA detention centers, e.g. "water boarding." And Padilla was being held in military custody during this time period....coincidence? And I don't think the government can argue that the Eighth Amendment doesn't apply in South Carolina.

Hey Congress...how about defunding some these thing, huh?

Bush Says Rumsfeld Is Stepping Down

I think I just came in my pants

The Tipping Point?

Or maybe the breaking point, or melting point, or perhaps critical mass of bull shit. Granted, we all have the attention span of a ferret that has just imbibed a double-espresso (thanks for nothing Nickelodeon), but there has got to a point where we say "basta."





"It's never been stay the course?" Are you kidding me? While the American public is too distracted to notice some of the more subtle shifts of policy (e.g., why we're in Iraq), we all have heard this one thanks to the ubiquitous talking point. You're just fibbing now George. Can we please just sit down and be honest about this now? Please?

Thank you to my friend (who knows who he is) for sending me this link. Incredible.