The government wants your cash

About a year ago, I wrote about the case of a motorist who was found carrying a large sum of money. The police seized it, arguing that it just had to be drug money. They were allowed to keep it without ever bothering to prove an underlying crime, thus establishing the cherished legal principle that police can take your money anytime they like as long as the sum is large enough and the defendant is poor enough.

Now it's happened again, this time in Michigan. But there's a twist: the search that uncovered the money was illegal, which turns this into a case with broader civil-liberties implications.

No matter.

The Michigan Supreme Court on Tuesday denied the appeal of a motorist who had to forfeit nearly $181,000 that was found in a backpack during a traffic stop, even though the money was seized illegally....

Tamika Smith, who was stopped by a Michigan State Police trooper, lost the money when a judge ruled prosecutors presented enough other evidence to show it was intended to buy illicit drugs.

That evidence involved such legal activities as being poor, in possession of a large sum of money, while driving a rental car in a known drug-trafficking area.

Some details from Detroit Free Press columnist Brian Dickerson:

Five years ago, the 33-year-old Detroit woman was driving her boyfriend and her two small children to Chicago when a state trooper stopped her for speeding on I-94 outside Paw Paw. A license check revealed that the boyfriend had been arrested for cocaine possession and weapons offenses. In a subsequent (and apparently unauthorized) search of the couple's trunk, the trooper discovered a backpack containing $180,975 in cash.

Smith and her boyfriend denied the money was theirs and speculated that someone had left it in the car they had rented just a few hours earlier. But when prosecutors petitioned the state to keep the money, Smith contested the seizure, arguing that the search in which Trooper James Lass discovered the cash was illegal.

Van Buren County Circuit Judge William Buhl agreed, but eventually ruled the prosecutor's forfeiture suit could proceed, so long as the cash was never offered as evidence. When Smith, who had never earned more than $14,000 in a year, offered vague and unconvincing accounts of the money's origins, Buhl concluded that she was most likely a drug courier and ordered the money forfeited to the state.

Now I agree that Smith acted suspiciously and couldn't provide a good explanation of where the money came from. I'll even agree that she's most likely a drug courier. She also lost some standing by first denying that the money was hers.

But that's not the point. Before the government can seize private property, they should have to prove that it is tainted or ill-gotten. It's not up to the individual to prove the money is legitimately theirs; it's up to the government to prove it's not.

Question Smith about the money? Sure. Prosecute her if a crime can be established? Of course. I'd even support putting the money in the state's unclaimed funds account on the grounds that Smith denied it was hers, so she doesn't have a claim to it.

But taking property simply because, in a judge's opinion, someone is "most likely" a drug courier should offend anyone who believes in civil liberties or property rights.

You don't even have to go that far. Justice Stephen Markman, the state Supreme Court's most conservative member, wrote a stinging dissent on the narrow grounds that illegally obtained evidence cannot be used as evidence to support the seizure of said evidence. Here's the full opinion in the case (pdf); Markman's dissent begins on Page 30. In it he notes the bizarre logic used in the main opinion, which asserts that "while the cash itself was excluded from evidence, the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle." In other words, though the cash itself was excluded from evidence, the cash itself could be included as evidence.

The upshot:

Oak Park attorney Karri Mitchell, who represented Smith in her unsuccessful appeal, said the high court's ruling leaves every Michigan resident's property rights in jeopardy.

"This means that John Q. Public can be stopped for a traffic violation and, if the policeman thinks he can't afford the watch he's wearing, it becomes the property of the state unless he can prove he came by it legitimately," Mitchell said.

But Van Buren County Assistant Prosecutor Michael Bedford, who at one point offered Smith about $30,000 to drop her claim to the $180,000, called Mitchell's scenario far-fetched.

"Theoretically, a person could be forced to prove they came by an [illegally seized] asset legally," Bedford conceded.

"But hopefully, we don't have anybody out there abusing the forfeiture statute and putting people in a position where they have to do that."

Oh, I feel safer already, knowing that the state's best defense is that "hopefully, nobody will abuse the statute."

civil liberties, politics, midtopia

Libby v. Rich

There's a hue and a cry in certain parts of the polity over the Congressional interest in President Bush's commutation of Lewis Libby's jail sentence. The basic theme: Libby deserved a pardon, not just a commutation, and Bush's action was clearly on the up-and-up. So Congress shouldn't investigate the matter, and if they do Bush should claim executive privilege and tell them to sod off.

Oh, and there are the claims of hypocrisy, seeing as how Clinton's rash of last-minute pardons barely raised any Democratic eyebrows.

That last charge has a ring of truth to it. Democrats often are loath to criticize a Democratic president, just as Republicans often are loath to criticize a Republican. They tend to express their opposition through lack of support, not active criticism. It's why divided government is a generally a good thing: neither party can be trusted to police itself.

That said, Clinton's pardons drew bipartisan criticism -- particularly his pardon of Marc Rich, which hardly anybody defended. Likewise, even many Libby sympathizers think Bush was wrong to completely eliminate his jail term.

Starting with that similarity, let's compare the Libby case with the Rich case and see where we end up.

Bush: Commuted the sentence of a man convicted of lying to investigators looking into possible illegal actions in the White House, raising suspicions of a coverup and a commutation based on connections, not the facts of the case.
Clinton: Pardoned a fugitive whose wife was a major Democratic donor, raising suspicions of a "pardons for cash" deal and pardon based on connections, not the facts of the case.

Bush: Commuted Libby's sentence without consulting the Justice Department, the prosecutor in the case or going through normal channels.
Clinton: Pardoned Rich without consulting the Justice Department, the prosecutor in the case or going through normal channels.

Bush: Has claimed executive privilege to prevent subpoenaing of aides and documents.
Clinton: Waived executive privilege, allowing Congressional investigators to subpoena aides and documents.

Bush: Nearly silent on his reasoning for the commutation.
Clinton: Wrote a New York Times op-ed piece defending his pardon.

Bush: Faces the prospect of multiple hearings and press conferences from Congress over the commutation.
Clinton: Endured multiple Congressional hearings and press conferences over the pardon, culminating in a lengthy report from the House subcommittee chaired by Rep. Dan Burton.

Bush: No special prosecutor -- yet.
Clinton: Endured an investigation from a special prosecutor, first Mary Jo White and then the ubiquitous James Comey, who eventually closed all the probes without seeking an indictment.

So what we have today is a Democratic Congress acting almost exactly like a Republican Congress did in 2001.

I had and have no problem with the Republican investigations of the Rich pardon. The special prosecutor was a little over the top, but the hearings and criticism were well-deserved. It was yet another personal low point for Clinton in an administration that had many of them. It was yet one more example of Clinton's split personality -- so questionable personally, but so successful and popular on a policy and political level.

Similarly, though, I have no problem with the Democratic investigations of the Libby commutation. And I think Bush should follow Clinton's example and waive privilege in this case.

Bush himself, by the way, is laudably (if wrongly) consistent in this matter. He criticized the pardon in 2001, but didn't call for an investigation, saying Clinton had the right to do it. He later said it was "time to move on" -- partly out of fear that the continuing probes would hamper passage of his own political agenda. Bush's other main motive: a desire to preserve and expand the power of the executive branch, something not helped by a Congress questioning an enumerated Constitutional power.

Bush, Clinton, Marc Rich, Libby, politics, midtopia

Did Gonzales lie to Congress again?

Let's take a look.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

Gonzales' defense? Well, he doesn't make one personally. But Justice officials laid out two main arguments:

He might not have read the reports. Setting aside whether that reflects poorly on his management of the agency, we get to a more germaine criticism: Maybe he shouldn't be making sweeping assertions to Congress if he hasn't actually examined the data in question.

The reported violations weren't "real" violations. By this, officials mean that the violations were more technicalities than actual abuses. And in some cases, this appears to be true: a mistyped phone number in a National Security Letter, for example, which led FBI agents to eavesdrop on the wrong phone line.

Considering Gonzales talked about "abuses" to Congress at the 2005 hearing (he doesn't mention them in his opening statement (pdf), but gets into it a little bit in the full testimony) it appears that he didn't actually lie -- assuming he actually read the reports, and they didn't contain any "verified" instances of abuse. Mistakes and good-faith misjudgments don't really qualify as abuse, though they can be problematic in and of themselves: One reason not to give government sweeping powers is because of the damage such mistakes can cause, and a claim of "it was a mistake" can be used to cover up actual abuses.

Should Gonzales have acknowledged some bureaucratic mishaps? Arguably, yes. But that's not what he was being asked about, and a certain number of mistakes are to be expected in any human endeavor. So unless better evidence emerges about what Gonzales knew at the time of his testimony, accusing him of lying simply isn't supported by the known facts.

Update: A pair of senior Justice Department officials, James Baker and Kenneth Wainstein, said they routinely informed Gonzales about problems with FBI surveillance efforts. But they did not cite instances of "abuse" of the Patriot Act powers. However careful Gonzales may have been with his language, there's still no evidence he lied, or that at the time he knew about anything more than routine bureaucratic slipups that were not the kind of problems Congress was concerned about.

Patriot Act, Gonzales, politics, midtopia

Weekend roundup

Notable events from today and the weekend just past:

EXECUTIVE PRIVILEGE
President Bush won't comply with Congressional requests for testimony from former aides, setting up a legal showdown over the extent of executive privilege. I had expected him to fold, given what I see as the weakness of his legal hand in this case. But if he doesn't, we can at least look forward to a rare judicial ruling clarifying a murky area of Constitutional law.

EXECUTIVE PRIVILEGE II
Coincidentally, the New York Times has an opinion piece examining the Congressional minority report in the 1987 Iran-Contra scandal, a report produced by none other than Dick Cheney, then a representative from Wyoming, and David Addington, who is now Cheney's official counsel.

The participants in Iran-Contra lied to Congress and broke an express Congressional directive to cease funding the Contras in Nicaragua. To do it they broke several other laws in order to sell weapons illegally to Iran and then launder the money before delivering it to the Contras. Cheney's report essentially admits all that, but says it was Congress' fault for passing a law that overreached its Constitutional power to restrain the executive branch. In other words, it was perfectly fine to break the law because the law should never have been passed.

The report was widely criticized at the time, both for its pinched view of historical precedent and the practical effect it would have: essentially eliminating any Congressional role in foreign policy. That did not change Cheney's mind, and he now refers to that report -- however ungrounded in reality it might be -- as a good explainer of his view of executive power -- and how he can view Watergate as merely "a political ploy by the president's enemies."

YET ANOTHER ETHICS BATTLE
I've written positively several times before about Sen. Jim DeMint, a conservative Republican who has held the Democratic majority to various ethics promises they made during the November elections.

This time, though, he's wrong. Cynically or unintentionally, he's letting the perfect get in the way of the pretty good.

The Senate's lobbying reform measure includes a provision that requires members to disclose the earmarks they propose and swear they have no financial interest in them. DeMint supports this measure.

So what's the problem? This: DeMint wants Democrats to promise that the measure won't be changed in conference committee with the House. That sounds reasonable, but Democrats say granting that exception would open the door to dozens of other side deals on the bill, creating a potential mess that could delay the whole thing.

DeMint should drop his demand and let the bill pass. If the Democrats water down the provision in conference, then it will be on their heads and he can tie the Senate in knots if he wants until the problem is fixed. Which could be done pretty easily at that point, by passing a separate, Senate-only rules change.

Making sure Democrats live up to their promises is one thing; obstructing real reform because he thinks Democrats might try to renege is another. Let the bill pass, and hold Democrats responsible for any changes.

NANCY'S PLACE
Over in the House, meanwhile, Nancy Pelosi is apparently coming into her own as the Democratic leader, defying some senior committee chairmen who wanted a return to the days when such chairmen ran their committees like virtual fiefdoms, with little heed paid to party leadership. I have a philosophical sympathy for such divided power, disgusted as I am by the lockstep partisanship of modern politics. But I also recognize that central leadership is necessary in order to achieve anything resembling a national political agenda. Pelosi's challenge is to unite a fractious caucus and push through that agenda without unduly limiting the committees' independence.

Pelosi appears to be doing that, slowly freeing herself from the grip of her inner circle of advisers (Murtha in particular appears to be marginalized) while using a combination of favors, persuasion and hardnosed politicking to get her way with the wider caucus.

Pelosi, executive privilege, Iran-Contra, Cheney, ethics, DeMint, politics, midtopia

Appeals court throws out eavesdropping lawsuit

A federal appeals court has thrown out a Detroit judge's ruling that the NSA warrantless wiretapping program was unconstitutional, saying (as expected) that the ACLU and its clients don't have standing to pursue the case.

Why do they lack standing? Because they can't prove they had been subjected to surveillance under the program.

As I've noted before, this sort of logic drives me nuts. Standing is an important legal concept, which helps ensure that someone bringing suit has a relevant interest in the case. It's a key defense against frivolous lawsuits, and keeps people, organizations and the government from intruding where they don't belong.

But in a case involving secret eavesdropping, in which the government (reasonably enough) refuses to say who or what it is monitoring, how can someone ever prove standing? By this logic, the government can have every case thrown out as long as it keeps the names of its subjects secret.

That's nonsensical. To quote my earlier rant:

It seems to me, though, that in important cases like this there should be available a broader form of standing, one that allows a court opinion to be rendered without requiring proof that the plaintiff has been specifically targeted. It would be a class-action suit of sorts, following the logic that "we're all affected by this program, either directly or indirectly, so we all have standing to question it.

That's pretty much the tack the ACLU was pursuing, so maybe they'll appeal to the Supreme Court and hope for the best. Seems like a bit of a long shot, though.

Meanwhile, a companion case out of Oregon is still alive.

Update: A detailed discussion of the case -- and the whole issue of standing -- over at Althouse.

terrorism, NSA, ACLU, politics, midtopia

James Madison on impeachment

I came across this interesting bit of history while trolling through the Clinton impeachment archives looking for Libby parallels.

It's a discussion of how the framers dealt with the impeachment and pardon powers during the Constitutional Convention. Here's how James Madison addressed one concern:

George Mason argued that the President might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." James Madison responded: "[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...."

Hmmm....

It's a matter of opinion whether the Libby commutation is so wrongful that it deserves impeachment; after all, we probably wouldn't impeach the president for commuting a speeding ticket even if it was transparently immoral. And I believe impeachment efforts should have a high bar to get over. On a practical level, Bush is so close to the end of his term that impeachment proceedings are probably pointless anyway.

But it's worth noting that the Framers didn't think the impeachment bar was as high as we do today. They seemed to think it could be resorted to freely and that the necessity of supermajorities to convict was a sufficiently large hurdle to prevent abuse.

Madison, for example, appears to argue that pardoning an administration official is so injurious to the Constitution and the rule of law that it's an impeachable offense. Indeed, Madison argues that a president could be impeached if Congress merely suspects the President would shelter a criminal to which he is connected. That's not a very high bar at all.

Update: The Donklephant version of this post is currently a "featured post" over at Memeorandum.

impeachment, Libby, politics, midtopia

Safire on presidential pardons

Conservative columnist William Safire had his ire up over presidential pardons in 2001.

Result: the most flagrant abuse of the presidential pardon power in U.S. history. Even Clinton stalwarts are openly disgusted at their man's departing display of shamelessness. But Rich's hired guns in public relations and the law will soon claim that ''every president did it'' or that ''Rich was persecuted by evil prosecutors.''

How can Clinton's final presidential wrong be righted? A constitutional amendment to restrict the undemocratic kingly power is far off, and this unpardonable pardon can never be undone. But though justice in this case is denied, truth can be served, and the truth can hurt Rich and the perpetrators of his pardon.

Congressional hearings will begin next week to determine how the end run was made around all normal procedures. To display nonpartisanship, Dan Burton's Government Reform Committee should call a predecessor chairman, John Conyers, who held hearings a decade ago into Republican failures to bring Rich to trial.

A threshold question: Why did Clinton decide the case on a one-sided presentation by Rich's lawyer, Quinn, with no analysis from Justice's pardon attorney, Roger Adams? Why was Rich's prosecutor in the Southern District of New York, Mary Jo White, kept in the dark rather than asked for her rebuttal?

Safire was writing about Clinton's shameful pardoning of billionaire fugitive Marc Rich. But isn't it interesting how many of the same criticisms apply to President Bush's pardon of Lewis Libby.

Note the similarities:

1. The claims of "everybody does it" and that Libby was "persecuted by evil prosecutors."

2. The threshold question. Why did Bush decided the case after a one-sided consultation with a few close aides? Why was Libby's prosecutor kept in the dark rather than asked for his rebuttal?

Safire supported Congressional hearings into how the pardon was made.

I wonder two things: If Bush supporters will admit the parallels, and if Safire will call for the same treatment this time around (though that might not be a fair thing to ask for, considering he hung up his columnist hat a couple of years ago).

I'm not holding my breath.

pardons, Marc Rich, Libby, Safire, politics, midtopia

Libby goes free

Man, I shut off the computer for the night, and 30 seconds later Bush commutes Libby's prison sentence. Sometimes I think it's personal.

Here's the White House statement on the commutation. It's a pretty balanced document, but in the end it mostly pays lip service to the arguments favoring at least a short prison stay. He stripped away the 30-month jail term, leaving the $250,000 fine and a lengthy probation term.

Bush made the decision after consulting just a handful of advisors. He explicitly did not consult friends of Libby, who wanted to lobby for clemency. But neither did he consult the Justice Department or the prosecutor, Patrick Fitzgerald, as is routine in such cases.

Previously I noted that some clemency was probably warranted, but Libby needed to serve at least some jail time or else the president's political capital would all but evaporate. I still think that's true.

Here's what might have been going through Bush's head:

The White House appeared to be calculating that no matter what he did to keep Libby out of prison, Bush would not make Democrats happy, and if he did nothing, he would infuriate his strongest conservative supporters.

He's probably right about the Dems, but they now have even more reason to be even more opposed to him. Meanwhile, polls show a strong majority of voters didn't want Libby pardoned. They'll view comutation as essentially the same thing, so now Bush has lost them. A large minority felt that the jail sentence was excessive, but also feel that no jail time at all is too lenient. Further along the spectrum, many of his conservative supporters were demanding a full pardon, and consider the partial commutation too little, too late.

As well, hanging over it all is the question of whether Libby is being protected because he lied to protect his superiors in the Plame case.

Had Bush waited to commute Libby's sentence; or commuted it to even six months in jail, he would have demonstrated that actions have serious, tangible consequences -- not a fine that will be paid by well-heeled supporters and a meaningless probation. Yes, Libby has had his reputation smirched. But not in the circles that matter. He will land on his feet, in some silk-stocking law firm or lobbying outfit, and his conviction will simply be a footnote in his biography.

The only part of the sentence with real teeth was the jail term. And Bush has now made that disappear entirely.

It was a poor move, politically, legally and morally. It sends entirely the wrong message, and seems to confirm that the administration considers itself above the law, willing to let the legal system do its work only as long as it reaches a conclusion that the administration likes. This may not be a fair or accurate impression; but Bush has brought it on himself.

Update: Just as a refresher, here's a month-old excellent debunking of five common Libby myths by the Washington Post. The summary: Plame was covert; Libby did leak her identity; there's no solid evidence Rove was involved; Cheney dislikes bad press, however much he might pretend otherwise; and the White House has yet to discipline anyone involved in the leak of Plame's name. (h/t: Centrisity)

Update II: Bush's split-the-difference move has created a small legal kerfuffle. Libby was sentenced to two years of "supervised release" after his prison term, a condition Bush left intact. But in order to qualify for supervised release, a defendant must serve prison time. So what happens now? If the requirement of prison time is clear, I don't think the judge has the authority to make up something to address this situation. So look for Libby's sentence to be modified to unsupervised probation. that leaves the $250,000 fine as the only remaining part of the sentence -- and even that will likely be paid by someone other than Libby.

Libby, politics, midtopia

No delay for Libby

A federal appeals court unanimously refused to delay Lewis Libby's trip to prison while he appeals his conviction.

He'll now be given a surrender date, and will get to pursue his appeal from behind bars.

The grounds for his appeal was that he was likely to prevail on appeal, so he shouldn't be jailed in the meantime. By rejecting that argument, was the court offering a negative opinion on the strength of his case? Or simply deciding that the argument wasn't strong enough to keep him out of jail?

Separately, the court on Friday unsealed court documents in the case, giving a glimpse of prosecutor Patrick Fitzgerald's thinking as he pursued his investigation into the leak case. There's not much new in them, apparently -- mostly a more coherent timeline of prosecutorial procedure.

It shows, as became apparent long ago, that no underlying crime could be charged because he couldn't prove that Libby or any of the other leakers knew Plame was a covert agent -- a difficult legal prerequisite for proving a crime. But he was also convinced Libby was lying. So he charged Libby with that, probably hoping Libby would cut a deal to avoid conviction and prison.

Libby didn't do that. So what remains unanswered is what Libby was lying about, and why. We probably won't know until the staff memoirs start emerging -- and maybe not even then, given the secrecy and hermeticism of the vice president's office.

Update: The linked story has updated, and it appears partisan efforts to claim that Libby is the victim of a politically motivated witch hunt -- a claim that was hard to justify to begin with -- are getting harder and harder to sustain: two of the three members of the appeals panel were appointed by Republicans.

So thus far we have Libby prosecuted by a Republican appointee, before a Republican-appointed judge (who sentenced Libby to a relatively harsh term and refused to grant him a delay), and his appeal rejected by a Republican-majority panel. Yep, definitely a witch hunt....

Libby, politics, midtopia

SCOTUS to examine Guantanamo case

What a difference two months makes.

After revelations that the military's Combatant Status Review Tribunals might have been, shall we say, a bit of a farce, the Supreme Court overrode administration objections (and reversed its own April decision) and agreed to decide whether Guantanamo detainees can contest their detention in U.S. courts.

How unusual is this? Very.

The move to grant a motion for re-hearing in a previously denied case is rare. Court observers pointed to a 1968 case as the closest parallel to what happened Friday.

Back in April, three justices wanted to take the case: Breyer, Ginsburg and Souter. So this decision indicates that at least two other justices changed their minds. I'll just hazard a guess that their names are Kennedy and Stevens.

The case, which is expected to be heard in the fall, will be interesting on several levels. For one thing, it will involve the judicial branch ruling on the constitutionality of a legislative move stripping the judiciary of the power to hear detainee challenges.

Assuming the tribunal revelations were a triggering event, it could also indicate the court will take a jaundiced view of the administration's key defense: the tribunals themselves.

The detainees' attorneys want the appeals court to allow a broad inquiry questioning the accuracy and completeness of the evidence the Combatant Status Review Tribunals gathered about the detainees, most of it classified.

The Justice Department has been seeking a limited review, saying that the findings of the military tribunals are "entitled to the highest level of deference."

But the demand for deference assumes the tribunals were carried out with integrity and due regard for the rights of prisoners. Kangaroo courts deserve no deference.

Couple that with the recent reversal for the "enemy combatant" designation, as well as the dropping of charges against other detainees because they have not been designated "alien unlawful enemy combatants" as required, and it appears the whole Combatant Status Review Tribunal process could be nullified. That would require the United States to start over from scratch, proving that each detainee deserves to be detained.

Maybe this time around they'll give the detainees some basic legal protections instead of railroading them.

The administration's handling of Guantanamo has always been a practical and moral disaster; now it's becoming a legal disaster as well. Add another line to this administration's towering record of hubris and incompetence.

Update: It'll be interesting to see if the court's decision is made moot by a Congressional push to shut down Guantanamo. Probably not, as the prisoners wouldn't be released; they'd simply be transferred elsewhere.

civil liberties, Guantanamo, politics, midtopia

Former Alabama governor sentenced

Don Siegelman, a Democrat who was governor of Alabama from 1999 to 2003, was sentenced to seven years in prison and $230,000 in fines for taking bribes during his governorship.

If I were so inclined, I could take a cue from Republican defenders of Lewis Libby and Tom DeLay and decry the "political motivation" behind Siegelman's prosecution, given revelations of a potential Karl Rove connection, other Republican connections to his case, prosecution attempts to have his sentence calculated based on the charges on which he was acquitted, and the fact that a judge entirely threw out -- with prejudice -- the prosecution's first attempt to charge Siegelman in 2004. Or that when a Republican governor, Guy Hunt, was convicted of pocketing $200,000 in 1992, the state (indeed, the same prosecutor) sought probation, not jail time.

But I won't, because the motivation of the prosecution doesn't matter as much as the facts of the case and the conviction that resulted. The man took bribes; he deserves to go down. The fact that someone else in a similar situation got off lightly is irrelevant.

Partisans might take a lesson from that.

Hall of Shame has been updated.

Siegelman, politics, midtopia

DeLay update

Haven't heard from the Hammer in a while. But we have some progress in his glacially slow legal showdown with prosecutor Ronnie Earle.

Tom DeLay's lawyers prevented prosecutors from reinstating a tossed conspiracy charge, on the simple grounds that the law in question didn't exist when DeLay was accused of violating it. It's a little more complicated than that, but apparently not complicated enough for Texas' highest court to reverse earlier rulings.

Next up: resolving arguments about the validity of the two remaining charges. And then -- assuming the charges hold up -- maybe we can finally set a trial date.

Tom DeLay, politics, midtopia

Cheney the legislator update

I had planned a roundup of (informed) reaction to Dick Cheney's assertion that the Office of the Vice President isn't part of the executive branch, But Joe Gandleman beat me to it.

He links to Captain's Quarters and Glenn Reynolds -- both conservatives, both unimpressed.

And he also notes the hay that Rahm Emanuel is making with it, including a move to strip funding for the OVP from the funding bill currently before the House.

Meanwhile, Newsweek notes that one reason Alberto Gonzales has not responded to the National Archives letter requesting his opinion on the matter could be because, five months later, Justice still hasn't looked into it.

The L.A. Times had a story on Friday saying the White House was exempting itself from the EO as well, something that contradicts reporting in other stories as well as the letters from the National Archives to Cheney and Gonzales. If true, it doesn't make Cheney's "not part of the executive branch" argument any less silly. But it would mean the OVP is no longer acting differently from the White House itself, isn't openly flouting an EO and that the main focus of criticism shifts from Cheney to Bush.

Cheney, politics, midtopia

Separate but unequal justice

Raise your hand if you're surprised by this. Anybody? Anybody? Bueller?

An Army officer 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.

His affidavit, submitted to the U.S. Supreme Court and released Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only "generic" material that didn't hold up to the most basic legal challenges.

As generally suspected, the panels were a crock. But that's not the best part.

Abraham was asked to serve on one of the panels, and he said its members felt strong pressure to find against the detainee, saying there was "intensive scrutiny" when they declared a prisoner not to be an enemy combatant. When his panel decided the detainee wasn't an "enemy combatant," they were ordered to reconvene to hear more evidence, he said.

When the panel didn't reach the "correct" conclusion, they were ordered to try again. But that's not the best part.

Ultimately, his panel held its ground, and he was never asked to participate in another tribunal, he said.

If you're a panel member and you still insist on delivering the wrong answer, you aren't invited back!

Employ such a filtering technique two or three times, and you could end up with panels that would reach the "right" conclusion nearly every time.

To be fair, this is one man's testimony. We don't know if what happened to him was typical, or whether the decision not to let him sit on any more panels was related to the verdict rendered. More data is needed before firm conclusions can be drawn.

But this is yet another example of why legal shortcuts are a bad idea that almost guarantee miscarriages of justice.

, Guantanamo, Gitmo, terrorism, politics, midtopia

Cheney's destruction of executive power

The Washington Post is publishing an excellent four-part series examining Dick Cheney's role in the current administration, from terrorism to the economy to the environment. The first two installments are already out, with the next two coming tomorrow and Wednesday.

The series' name, "Angler", seems pretty odd until you realize it's Cheney's Secret Service codename. Though relying heavily on anonymous sources, the breadth, depth and carefulness of the reporting is impressive: More than 200 interviews with administration insiders with direct experience working with or against Cheney, who gave the reporters access to notes, calendars and other records to bolster their words. This isn't a careless, anonymously sourced hatchet job, and the story names so many names that if its claims are not accurate they would be easily demolished. This appears to be "best-practice" use of anonymous sources.

In Sunday's piece, Barton Gellman and Jo Becker detail how Cheney operates: behind the scenes, in secret, depending on his extraordinarily close relationship with President Bush to bypass other agencies and the normal review mechanisms and essentially upend the traditional model of the vice-president's role.

There's nothing particularly wrong with that; A VP who is the president's chief adviser or doppleganger could be very useful, and at a minimum is a way to squeeze extra value out of what has long been a mostly ceremonial post. Sure, one can always paint Cheney as some sort of Rasputin (or, in the current parlance, Lord Voldemort), but there's little evidence to back that up: it's not like he is blackmailing or hypnotizing Bush. It's what Cheney has done with that influence -- not the influence itself -- that deserves criticism.

(If anyone should be blamed for that influence, it's Bush -- who continues to listen to Cheney even though the veep has unhesitatingly led him down losing path after losing path in the last six years.)

The influence goes beyond Bush, though. In the early days of the Bush administration, at the height of his influence, Cheney filled the administration with allies, loyalists and former aides. That gave him huge influence at lower levels of government, allowing him to strongly influence other departments and Congress. It also reinforced his advice to the president, because the president would hear the same advice echoed by Cheney allies elsewhere in the executive branch.

Then there's his legendary penchant for secrecy:

Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs.

As well, there's his recent assertion that his office isn't part of the executive branch when it comes to having to obey Executive Orders. As the story says, information flows into the VP's office -- but nothing comes out. It's a Roach Motel for information.

After 9/11 his priority became fighting terrorism without any restrictions whatsoever, be they constitutional, legal or moral. He directed the legal team that sought so many spurious rationales for ignoring plain readings of law or any meaningful limits on executive power in wartime -- regardless of whether that war were actually declared or not, or even meaningfully defined.

That disregard helped him bull through opposition in the short term, but over time has dealt him the usual punishment for overreaching:

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.

Cheney and his legal team knew their assertions would never withstand scrutiny, which is why they went to such lengths to avoid scrutiny -- even if it meant bypassing Congress, the courts, and administration officials with direct responsibility for the matter at hand.

Cheney's office couldn't be bothered to join administration discussions about what to do with captured Taliban and Al-Qaeda fighters, preferring instead to simply ignore all the discussion about legalities and nuances and do what he wanted by going directly to the president. One of the most interesting sections of the first article explains how this practice went directly against a lifetime of Cheney's own advice.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added: "It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

He should have listened to his old self.

The story contains repeated examples of how Bush delegated extraordinary authority on terrorism and intelligence to Cheney -- so much so that when officials went to the White House to complain about Cheney's policy moves, they found themselves meeting with... Cheney.

His reach was long. Supposedly confidential memos from White House officials to the national security advisor -- at the time, Condoleeza Rice -- were secretly routed to Cheney, too; Cheney was reading Rice's mail. In another sign that Alberto Gonzales is an empty shirt, Cheney's staff would prepare memos for Gonzales -- then the White House counsel -- to sign, hiding Cheney's role and putting Gonzales' name to words he never wrote. thus Bush would sometimes hear identical advice from Gonzales and Cheney -- because Cheney had written Gonzales' memo.

Monday's article delves deeper into Cheney's destructive efforts to expand presidential power -- including Cheney's nonstop efforts to allow torture, to exclude the CIA from legal restrictions on torture and to set up the President as the sole authority for deciding what is torture and what isn't (even though abuses by the executive branch are what such laws and conventions are designed to protect against). All this while ignoring, undermining and punishing anyone who dared argue differently.

Once again, the story describes repeated examples of Cheney hiding from the light -- making breathtaking assertions of executive power, then hiding those assertions from anyone who might question or oppose them.

In secret memos, Cheney's chief lawyer, David Addington, pushed some of the most extreme interpretations of presidential power:

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

According to that logic, the president could "accidentally" strangle a prisoner with his own hands in the course of an interrogation, and there is no authority on Earth that could outlaw it. That assertion is so bizarre, so contemptuous of any limit on presidential power, that it's easy to understand why the administration kept it secret. They changed the rules to their own satisfaction, then didn't tell any of the other players.

Cheney refused to step back from even his most outrageous claims, even as they were clearly headed for defeat in the courts. In this he had the continued help of the spineless Gonzales, who often sided with Cheney and Addington over the objections of the Justice Department and even his own staff.

Even when, as predicted, Cheney's views were repudiated in court, he refused to accept reality. For example:

When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending [solicitor general Ted] Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."

Even after Cheney's views had been soundly rejected by the Supreme Court -- a defeat that probably helped prompt Olson to resign -- Cheney exercised veto power over the choice of Olson's successor.

Later, Cheney overrode the Defense Department when it tried to formulate rules for the treatment of prisoners after Abu Ghraib.

In late August 2005, [Deputy Defense Secretary Gordon] England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.

Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment [of prisoners], "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.

"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.

But Cheney objected. Guess who won?

In the following year, Congress and the courts imposed most of those restrictions, and Waxman's successor pushed through the directive Cheney had derailed. But Cheney still found loopholes. Restrictions on torture applied to the Pentagon, not the CIA; and while Bush publicly promised to close down secret CIA prisons, he didn't promise not to open new ones -- and so he did.

For all Cheney's bluster about the supremacy of national security concerns, he has shown a willingness to subordinate those to political concerns. The article describes the case of Australian David Hicks. In plea negotiations with Hicks, they offered to jail him for "only" 20 years in exchange for a guilty plea and an affidavit that he hadn't been tortured as his lawyers claimed.

But then Cheney visited Australia, where he was told that the Hicks case threatened the re-election of Prime Minister John Howard.

Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty. ... The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the senior authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney.

Thus Hicks -- up until that time portrayed as a dangerous terrorist who deserved to be locked up for a long time -- was returned to Australia with a short sentence in order to bolster Howard's re-election bid.

There's a lot more in the stories themselves. And one of the reporters, Barton Gellman, will be online in a couple of minutes answering questions about the series. Meanwhile, stay tuned for Parts III and IV.

Cheney, politics, midtopia

"Swinging" Bishop's case goes before ethics panel

Alabama state Sen. Charles Bishop, who punched a fellow senator on the chamber floor, will have his case examined by the state Senate's ethics committee after the punchee lodged a complaint. A decision is expected by the end of summer.

Expect little more than a handslap, though, because the attack apparently doesn't qualify as a felony and Alabama apparently immunizes legislators against misdemeanors while the Legislature is in session.

Also expect fun testimony about just what Democratic Sen. Lowell Barron -- a man apparently given to directing obscenities at fellow senators -- said to provoke the wallop. All in all, this YouTube moment should shower disrepute down upon all involved.

Lowell Barron, Charles Bishop, Alabama, politics, midtopia

Pants suit plaintiff comes up empty

Roy Pearson, who claimed his lost pants were worth $54 million, was told by a judge today that, to the contrary, his pants were worth nothing at all.

In a verdict that surprised no one, except perhaps the plaintiff himself, a D.C. Superior Court judge denied Roy Pearson the big payday he claimed was his due.

Delivering her decision in writing, Judge Judith Bartnoff in 23 pages dissected and dismissed Pearson's claim that he was defrauded by the owners of Custom Cleaners and their "Satisfaction Guaranteed" sign.

And, as Pearson should have suspected, the boomerang could be quite unpleasant.

Financially, Pearson could soon be on the hook for tens of thousands of dollars in legal fees incurred by the owners of Customer Cleaners, and professionally, Pearson could find himself out of his $96,000-a-year job as an administrative law judge for the District government.

For once, idiocy appears to be its own punishment.

Pearson, politics, midtopia

Cheney the Legislator update

I've colonized the Friday open thread over at Stubborn Facts in search of a respectable legal opinion on Cheney's claim that his office isn't part of the executive branch. You can follow the discussion there if you like, and if either Pat or Simon weighs in with a fuller opinion I'll link to it.

Update: Both the L.A. Times and the Washington Post weigh in -- with the Post piece doing a good job of outlining Cheney's long obsession with secrecy. It also quotes the Justice Department saying that it's looking into the matter.

Update II: The press grills White House spokeswoman Dana Perino about the matter, and gets the runaround.

As you get further into it, she seems to be saying that yes, the president meant for the OVP to be exempt from reporting requirements. But she says that's because the president views the OVP as being essentially the same as the office of the president in this matter. The question, then, is why the president's office and the White House are complying with the EO if they're exempt. Again, it's the OVP that's the outlier.

And she doesn't even try to address Cheney's argument that his office isn't part of the executive branch.

She does, however, seemingly answer one of my questions from yesterday, which is that Congress has no authority to enforce or otherwise question how an EO is being carried out. They can attack the EO itself in various ways, but if Bush wants to let Cheney run wild, he can.

Cheney, politics, midtopia

Justice Department roundup

Three Justice-related stories today:

1. Deputy Attorney General Paul McNulty returned to Capitol Hill to revise some of his previous testimony and remarks about the prosecutor firings. Nothing particularly explosive came out of it, but it's yet another example of a Justice official saying one thing under oath only to have to revise it when later contradicted by facts -- although in this case there are people who feel McNulty's major crime was being honest, and he's being used as a scapegoat by Alberto Gonzales' supporters.

2. Former Attorney General John Aschroft confirmed the sharp disagreement within the administration over warrantless eavesdropping during a closed-door meeting with the House Intelligence Committee, according to committee chairman Silvestro Reyes. That is yet another bit of evidence contradicting Gonzales' claim that there was not much disagreement over the policy, and underlining once again that Gonzales is either clueless or a total hack.

3. Finally and most interestingly, Bradley Schlozman -- the last Justice official to have to do over his sworn testimony -- also played a central role in politicizing the hiring of career prosecutors during a stint as acting assistant attorney general for civil rights.

Karen Stevens, Tovah Calderon and Teresa Kwong had a lot in common. They had good performance ratings as career lawyers in the Justice Department's civil rights division. And they were minority women transferred out of their jobs two years ago -- over the objections of their immediate supervisors -- by Bradley Schlozman, then the acting assistant attorney general for civil rights.

Schlozman ordered supervisors to tell the women that they had performance problems or that the office was overstaffed. But one lawyer, Conor Dugan, told colleagues that the recent Bush appointee had confided that his real motive was to "make room for some good Americans" in that high-impact office, according to four lawyers who said they heard the account from Dugan.

But wait! There's more! It's not just Democrats that were targeted, but insufficiently Bushie Republicans:

In another politically tinged conversation recounted by former colleagues, Schlozman asked a supervisor if a career lawyer who had voted for Sen. John McCain (R-Ariz.), a onetime political rival of President Bush, could still be trusted.

On top of that, he was a coward:

That spring, Schlozman told a resistant Flynn to transfer Stevens to the disability rights section. According to sources in the office, Schlozman instructed Flynn to tell Stevens that the transfer was related to performance and was her idea.

View the allegations with a grain of salt, seeing as how they all come from anonymous sources without independent confirmation. But the extensiveness of the sourcing -- five lawyers and a supervisor within the civil-rights section -- helps boost credibility. And what verifiable facts are known are consistent with the story -- in particular that the various attorneys targeted by Schlozman have all returned to their previous jobs now that Schlozman is gone. It's unlikely they would have been returned so quickly if they were truly punished on merit grounds.

Schlozman, Ashcroft, Gonzales, politics, midtopia

Major League Baseball still at it

Last year, Major League Baseball sued the operators of several online fantasy baseball leagues, demanding licensing fees for the use of players' names and images.

I noted at the time how legally questionable -- not to mention stupidly self-destructive -- the move was. I'm not sure how MLB expects to prosper when it tries to destroy a stupendously efficient fan-creation machine. The NFL, for example, has always seemed to understand how useful fantasy football is for building interest in the game -- something far more valuable in the long-run than trying to squeeze revenue out of what is a low-cost hobby for most people.

The good news: MLB lost the case. The bad news: They appealed. And the appeal got a hearing last week. But it got a rocky reception.

A panel of three judges at the 8th U.S. Circuit Court of Appeals seemed skeptical that MLB could take financial control of a game that uses publicly available statistics and widely known names of players.

It will be interesting if they lose, because an adverse ruling could jeopardize the millions in licensing fees that the biggest operators of fantasy leagues have already agreed to pay. If the judges rule that such information is essentially public domain, the big companies will no longer feel compelled to pay.

One can only hope. As I noted last year:

In it's greed-fueled quest for control, MLB threatens to damage a hobby that probably has helped baseball's bottom line far more than it has harmed it. It's the sports equivalent of Digital Rights Management, in which publishers are destroying they're online market through greed and fear.

It would serve them right if that's what happened. But I enjoy fantasy sports too much to want to endure the fallout.

(h/t: Stubborn Facts)

fantasy baseball, baseball, politics, midtopia