Some more on Bush reversal in domestic spying

I found this New York Times article that provides even more details on the Bush reversal in the NSA domestic spying program:

In a four-paragraph letter on Wednesday announcing that the Bush administration had reversed its position and would submit its domestic surveillance program to judicial supervision, Attorney General Alberto R. Gonzales used one phrase three times. A secret court, he said, had fashioned a way to allow the program to be monitored by the judiciary without compromising the need for “speed and agility.”

That phrase also captures, some critics say, the administration’s moving-target litigation strategy, one that often seeks to change the terms of the debate just as a claim of executive authority is about to be tested in the courts or in Congress.

On Wednesday, the administration announced that an unnamed judge on the secret court, in a nonadversarial proceeding that apparently cannot be appealed, had issued orders that apparently both granted surveillance requests and set out some ground rules for how such requests would be handled.

The details remained sketchy yesterday, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts.

Haven't we seen this Bush behavior before? Remember the White House visitor logs and Jack Abramoff? Let's go back to the January 6, 2007 CNN News story:

WASHINGTON (AP) -- The White House and the Secret Service quietly signed an agreement last spring in the midst of the Jack Abramoff lobbying scandal declaring records identifying visitors to the White House are not open to the public.

The Bush administration did not reveal the existence of the memorandum of understanding until last fall.

The White House is using it to deal with a legal problem on a separate front, a ruling by a federal judge ordering the production of Secret Service logs identifying visitors to the office of Vice President Dick Cheney.

In a federal appeals court filing three weeks ago, the administration's lawyers used the memo in a legal argument aimed at overturning the judge's ruling. The Washington Post is suing for access to the Secret Service logs.

The five-page document dated May 17 declares that all entry and exit data on White House visitors belongs to the White House as presidential records rather than to the Secret Service as agency records.

Therefore, the agreement states, the material is not subject to public disclosure under the Freedom of Information Act.

The memo last spring was signed by the White House and Secret Service the day after a Washington-based group asked a federal judge to impose sanctions on the Secret Service in a dispute over White House visitor logs for Abramoff.

The chief counsel to another Washington-based group suing to get Secret Service logs calls the creation of the memo "a political maneuver couched as a legal one."

"It appears the White House is actually manufacturing evidence to further its own agenda," Anne Weismann, a Justice Department lawyer for 19 years and now chief counsel to Citizens for Responsibility and Ethics in Washington, said Friday.

The Bush administration signed a secret memo with the Secret Service, transferring the White House visitor logs from the Secret Service control to the White House control, de-railing any legal challenges to these visitor logs in relation to the Jack Abramoff scandal. And now the administration is presenting this letter written by Attorney General Gonzales, claiming that an unnamed judge on the secret court has granted the administration a blanket legal authority for the NSA to spy on anyone, and that this unnamed judge's decision cannot be appealed. And finally, we're told of this unnamed judge's decision just before lawsuits challenging this warrantless spying program is about to go to court. Continuing with the NY Times article:

Shortly before the Supreme Court heard a set of three detainee cases in 2004, the administration reversed course and allowed two Americans held incommunicado by the military to meet with their lawyers, mooting that issue.

After the court ruled that one of the men, Yaser Hamdi, could challenge his detention in court, the administration instead freed him and sent him to Saudi Arabia.

And just as the Supreme Court was considering whether to review the case of the second man, Jose Padilla, he was transferred to the criminal justice system last year, mooting his appeal.

[....]

In the case of the eavesdropping program, the administration continues to maintain that it is free to operate without court approval. Its decision to submit to the secret court, administration lawyers said, was voluntary. At a briefing Wednesday, almost as an afterthought, a senior Justice Department official said, “There’s obviously an advantage to having all three branches involved.”

The announcement about the surveillance program came two weeks before a federal appeals court in Cincinnati was to hear the first appellate argument about the lawfulness of the program. Government lawyers now say that case is moot, but their claim is open to question.

The usual rule is that cases seeking relief in the future are indeed moot when the relief they seek is granted. But there is an exception, said David Cole, a lawyer with the Center for Constitutional Rights, which has challenged the program in a separate lawsuit filed in New York.

He cited a series of Supreme Court decisions in which the defendants had voluntarily done what the lawsuits were seeking. Such cases are moot, the court ruled in 1968, for instance, only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

[....]

A third case, from Oregon, is almost certainly not moot. In addition to asking the court to stop surveillance without warrants in the future, that suit asks for money as damages for past surveillance.

The Oregon case, brought by an Islamic charity and two of its lawyers, differs from the Cincinnati appeal and the New York suit because the plaintiffs in it say they have seen a classified document confirming that their communications were actually intercepted.

What else can I say? The Bush administration will flaunt the law, change the law to their benefit, and even manufacture evidence favorable to their case. And they are doing it again here with the warrantless spying program.

What do you expect with a bunch of criminals?

Federal Judge: Tobacco firms deceived smokers

I'm not sure where this story is going. From Yahoo News:

WASHINGTON - A federal judge ruled Thursday that the nation's top cigarette makers violated racketeering laws, deceiving the public for years about the health hazards of smoking, but said she couldn't order them to pay the billions of dollars the government had sought.

U.S. District Judge Gladys Kessler did order the companies to publish in newspapers and on their Web sites "corrective statements" on the adverse health effects and addictiveness of smoking and nicotine.

She also ordered tobacco companies to stop labeling cigarettes as "low tar," "light," "ultra light" or "mild," since such cigarettes have been found to be no safer than others because of how people smoke them.

In her ruling, the judge said, "Over the course of more than 50 years, defendants lied, misrepresented and deceived the American public, including smokers and the young people they avidly sought as 'replacement smokers,' about the devastating health effects of smoking and environmental tobacco smoke (second-hand smoke)."

Kessler said that adoption of a national stop-smoking program, as sought by the government, "would unquestionably serve the public interest" but that she was barred by an appeals court ruling that said remedies must be forward-looking and not penalties for past actions.

The government had asked the judge to make the companies pay $10 billion for smoking cessation programs, though the Justice Department's own expert said $130 billion was needed.

So U.S. District Judge Kessler claims that the tobacco companies have deceived American smokers for the past fifty years about the dangers of smoking to their health, so that the big tobacco companies could continue to make huge profits from legally selling an addictive drug. But this same judge claims she can't do anything to punish the tobacco companies because of a previous ruling by an appeals court saying the companies must pay for forward-looking remedies, rather than paying penalties for past actions. What I would have to wonder is that if the big tobacco firms deceived smokers for profit, would this open up the tobacco companies to a new deluge of personal lawsuits from individuals asking to recoup their own health care costs, or even the costs needed to make them quit smoking? And what of the states? Are they going to sue to force the tobacco companies to pay for anti-smoking programs or programs to allow citizens to quit smoking? Or will the states try to force the tobacco companies to pay for current and future health care costs that is attributed to current smokers?

It certainly is interesting speculation here.

White House "Winnowing" for Rehnquist's Successor

Associated Press Reporter Deb Riechmann wrote that "The White House has laid the groundwork to place more conservatives on the Supreme Court, scrutinizing the backgrounds and legal views of a shrinking list of candidates amid speculation that ailing Chief Justice William Rehnquist soon will step down."

This compromise has stood for no more than a week, and already it is being destroyed. There is a good chance that Rehnquist will leave at the end of June, when the current court session concludes. "The vacancy could come anytime after this Memorial Day weekend, we think, said Sean reaction, director of the conservative Committee for Justice. Conservative and liberal groups are already gearing up for a fight. And of course, the Bush White House is drawing up a list of nominees to fill any open slots on the court.

Bush will choose a hard-lined conservative. It is no secret that he wants to tilt the court from its moderate stance to a far more conservative stance. It is also no surprise that Bush will select such hard-lined conservatives as a means of appeasing and paying back the Christian evangelists that have taken control of the Republican Party leadership. For thirty years, the Christian fundamentalists have wanted to reverse the court's decision on abortion. They've wanted to reinstate school prayer, outlaw gay marriages, and effectively destroy the separation of church and state. Bush is happy to oblige them. It is also no secret that Senate Majority Leader Bill Frist will also oblige the Christian fundamentalists. Frist wants to succeed to the presidency after Bush steps down in 2008. And in order for Frist to do so, he is going to have to placate the Religious Right. If Rehnquist steps down, Bush will elevate Antonin Scalia as Chief Justice. I think Clarence Thomas will be a little too controversial, considering the allegations of sexual harassment and Anita Hill will probably resurface in the confirmation hearings. Then again, Thomas could become the first black Chief Justice on the Supreme Court, allowing Bush a political victory which the Republicans can use to court the black vote in 2008. Bush would then nominate a hard-lined conservative. The Democrats would filibuster the nomination, and Bill Frist would pull the nuclear option out again to stop the filibuster.

This time, there will be no compromise. There is no way that the seven Republicans and seven Democrats can find a common ground for a Supreme Court nominee. Bush will certainly not accept a centrist judge--the religious Right would condemn him and Frist for tactually accepting this compromise. The Religious Right condemned Frist for allowing the compromise to go through for the appellate judges. They are not going to allow this for a Supreme Court judge--not if Frist wants to court their votes for 2008. And Bush has never given in to compromise on selecting federal judges--even when Senate Democrats have been able to block his selections. Bush just keeps renominating them to the court. While Bush may be hoping that the Senate would be a rubber stamp for his selections, it will not happen in this case--the stakes are way too high. Selecting a hard-lined conservative to the Supreme Court could ignite a firestorm in this country--something we've probably haven't seen since the late 60s or early 70s. The Democrats have nothing to lose here. If the Republicans and Bush try to force a hard-lined nominee down the Senate's throat, the Democrats can claim the Republicans are abusing their power in the government. The Democrats can accuse the Republicans of 'packing the Supreme Court,' while holding the line until the 2006 elections. The Republicans could try to claim that the Democrats are being obstructionist, however, that charge is diluted since the Republicans control both the Congress and the Presidency. The filibuster will take place. And the government will effectively shut down as both sides throw insults and mud at each other, forcing the political parties and the government to even lower levels of spite, insults, hatred, and rancor.

Oh, if you thought the 2004 elections were bad, just wait until 2006.

Judicial Filibusters

Judicial filibusters. Talk about another monster of a political issue. A judicial filibuster is a parliamentary procedure where the minority party will endlessly debate the qualifications of a judicial nominee within the Senate. In order to end a judicial filibuster, you will need 60 votes rather than a simple majority vote. In the simplest political sense, a judicial filibuster is a parliamentary procedure used by the minority party to block or oppose judicial nominees that a majority party will try to push through the Senate.

But today, we are not in the simplest terms for this filibuster.

The issue surrounding the judicial filibuster of the federal judiciary has become a high stakes poker game between the Republicans in the Senate and White House, and the Democrats in the Senate. And the prize is none other than stacking the Supreme Court with activist judges to legislate their particular political ideology. This is especially true for the Republicans rather than the Democrats, since the Republicans have gained control of both houses of Congress and the Presidency.

Stacking the court with activist judges to legislate from the bench. If you listened to the Republican Party over the last couple of weeks, they’ve attempted to tar the Democrats with this charge of judges forcing legislation reflecting elitist liberal views. Unfortunately the Republicans are also to blame for placing their own activist judges on the bench. The only difference is what type of ideology is either party trying to legislate. If the Republicans are able to push through their own hard-line conservative judges, then those judges would more than likely overturn some of the individual rights and freedoms that have been granted by the Supreme Court over the years. You could certainly kiss Roe verses Wade goodbye if the Republicans can put two hard line conservatives on the Supreme Court. Senate Majority Leader Bill Frist and President Bush are both under intense pressure by the hard-line Religious Right and the Christian evangelists to certainly stack the Supreme Court for the purpose of overturning abortion—the Religious Right have been pushing this goal for the last 30 years, and now with control of Congress, the Presidency, and an aging Supreme Court, they can almost taste it. It is all about control of all three branches of the government by hard-lined conservatives. That’s what it is all about. As an opposition party, the Democrats don’t have much of anything left to oppose this Republican takeover of the government. The judicial filibuster is one of those weapons the Democrats can wield.

But the Republicans don’t want the Democrats to use the filibuster. So for the past couple of months, Frist has been talking about doing away with the judicial filibuster on appellate court nominees so the Democrats would not be able to use it on a Supreme Court nominee. The Democrats under Senate Minority Leader Harry Reid have responded by claiming they would oppose all legislation in Congress—the so-called ‘nuclear option.’ Frist started the countdown this week by opening the debate on judicial nominee Priscilla Owen. However, on Tuesday, moderate Senators from both the Republican and Democratic side were able to fashion a compromise, where the Senate would confirm a majority of Bush’s nominees, while the Democrats could still use the judicial filibuster under extraordinary circumstances.
This is still a hollow compromise. Chief Justice William Rehnquist is battling cancer and may step down from the Court. Rehnquist is 80 years old. This opens the door to one court nominee and there are three others over the age of 65; Sandra Day O’Conner is 74, John Paul Stevens is 84, and Ruth Bader Ginsburg is 71. All three are also battling cancer. Even more important is that Stevens and Ginsburg represent a moderate-to-liberal wing of the Court, while O’Conner represents a moderate wing. A replacement of any one of these three justices with a hard-lined conservative would tilt the Court further right from its moderate stance. The Religious Right and evangelists are salivating over the replacement of any of these justices. And when an opening on the Court does occur, the Religious Right will lobby hard for a conservative justice who would overturn abortion. Both President Bush and Bill Frist would be very receptive to this lobbying group—Bush for his personal views and his presidential legacy, while Frist would be receptive as a way for the evangelists to support him for his 2008 presidential run. The Democrats under Harry Reid would not want to see abortion overturned, so they would use the judicial filibuster against any hard-lined conservative Supreme Court nominee selected by Bush. Frist would claim that these justices would deserve an up-or-down vote in the Senate of which the nominee would certainly be approved (Considering the Republicans control the Senate 55-44 with one independent). Frist would threaten to rewrite the parliamentary rules on filibusters to take out judicial filibustering. Reid would oppose all legislation moving through the Senate, effectively shutting down the Senate’s business. We would have another nuclear option.

With regards to my own opinion, I want the filibuster to occur when a Supreme Court nominee opens up. I will admit, I was a little concerned over the nuclear option during the last couple of weeks since I do not want the Republicans to pack the federal courts with hard-lined conservatives. I do not want abortion to be overturned, or to have the Religious Right legislate this country based on their moral viewpoints. I want a moderate federal and Supreme Court to tackle these tough issues, which have far reaching political and social repercussions. So in a way, I did want the Democrats to filibuster the federal judges. I knew this battle was about the Supreme Court. What I don’t think I realized is that the American public was ignorant of the views that this filibuster was about the fight for the Supreme Court. So perhaps this compromise was a blessing in disguise. Once the Supreme Court battle opens up with the filibuster and nuclear option surfacing, the American public would certainly be watching this battle with a greater interest. If Frist pushes for the elimination of the judicial filibuster, the American public could see this as a Republican abuse of power and possibly under the influence of the evangelists. This could cause problems in the 2006-midterm elections, and possibly derail Frist’s presidential ambitions by alienating moderates and independents. As for the Democrats, they don’t have anything to lose. They are the minority party in a Republican-controlled government. If the Republicans label Democrats as being obstructionists, the Democrats can label Republicans as being abusive with their power. Also with the Supreme Court fight, the Democrats can continue to reiterate that this is all about control of the Supreme Court and the fight by the Religious Right to overturn abortion. This battle is not over.

It has just begun.