U.S. Attorney General Eric Holder announced this morning that five alleged terrorists believed to have taken part in planning the Sept. 11, 2001 attacks will be brought from the detention camp at Guantanamo Bay, Cuba to New York City, where they’ll be tried in federal court.

From House Minority Leader John Boehner, R-Ohio:

“The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ‘not guilty’ due to some legal technicality just blocks from Ground Zero should give every American pause.

“These men are part of a global terrorist network dedicated to attacking America and civilization itself, and on that awful day nine years ago, they succeeded in killing nearly 3,000 men, women, and children. These terrorists were already being tried by military commissions, which were specifically designed to prosecute such heinous acts.

“This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality – treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America’s terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.”

From Iraq War veteran and VoteVets.org chairman Jon Soltz:

“Finally, after years and years, those responsible for the worst terror attack on America will start to face American justice.

“Showing the world that we operate on a higher moral plane than fiefdoms, theocracies and dictatorships when it comes to justice will be a dagger in the heart of al Qaeda recruiting, as Guantanamo Bay has been one of the terror group’s most effective recruiting posters. That helps our troops, and protects America.

“Additionally, this will prove that Liz and Dick Cheney, Mitch McConnell, John Boehner and their cohorts have been engaging in pure politics. Contrary to what they’ve said, transferring detainees to the U.S. to face justice and punishment will be secure, safe, and strong, as it has been for nearly 200 other terrorists. Once that becomes evident, it will be clear that their only interest in opposing real justice was to take down President Obama — American security be damned.”

Read Holder’s remarks at this morning’s news conference in their entirety, after the jump…
Read the rest of this entry »

University of California, Berkeley Boalt Hall Law School Professor John Yoo – widely recognized as an architect of Bush Administration policies on torture and detainee rights – has filed a brief asking the 9th U.S. Circuit Court of Appeals to toss a lawsuit filed by a former prisoner.

American citizen Jose Padilla claims Yoo, an attorney in the Justice Department’s Office of Legal Counsel from 2001 through 2003, provided the legal framework for the harsh treatment he received while held as a military prisoner for several years.

Padilla was arrested in 2002; authorities said he’d been involved in a plot to detonate a radioactive “dirty bomb,” and held him as an “enemy combatant” in solitary confinement in a military brig in South Carolina, where he claims he was illegally mistreated. Though authorities eventually dropped the dirty-bomb claims and transferred him to civilian courts, Padilla was convicted in 2007 of conspiracy and providing material aid to terrorists; sentenced last year to 17 years and four months in federal prison, he’s now appealing that conviction while he also sues Yoo.

Yoo’s lawyers moved to dismiss the case, saying that Padilla’s claims would force the courts to create a new legal right against government lawyers for legal advice given to the president, and that doing so “would not only constitute an unprecedented intrusion into the President’s authority in the areas of war-making, national security and foreign policy, it could jeopardize the ability of the President and other Executive Branch officials to obtain candid legal advice on constitutional matters of utmost national importance and sensitivity.”

But U.S. District Judge Jeffrey White of San Francisco in June refused to dismiss the case, and Yoo has appealed that ruling; he filed his opening brief late yesterday.

In it, Miguel Estrada, Yoo’s attorney, claims White overstepped his authority by creating “an implied constitutional damages remedy against Yoo for legal advice he allegedly gave to the President on matters of national security and foreign policy,” and that Yoo is entitled to qualified immunity – a protection for public officials who perform their official duties reasonably – because he wasn’t personally responsible for Padilla’s detention and treatment.

“Moreover, Padilla does not allege the violation of any clearly established rights. The law governing enemy combatants was and remains murky. To the extent enemy combatants possess any of the rights Padilla invokes—and, in most cases, it is clear they do not—those rights were not clearly established when Yoo worked in OLC,” Estrada wrote.

“This case also threatens to disrupt the political branches’ constitutional role
in war-making and foreign policy,” he wrote later in the brief. “If Executive Branch lawyers are threatened with personal liability should their legal analysis turn out to be incorrect, they will be reluctant to provide candid guidance on politically controversial issues.”

Padilla and his mother and co-plaintiff, Estella Lebron, must file an answering brief by Dec. 9, and Yoo has the option to file a reply within two weeks after that. The 9th Circuit appeals court has not yet set any oral argument date for this case.

Yoo has been the target of repeated protests and classroom disruptions at the Cal campus; the next protest is scheduled for Nov. 30.

House Education and Labor Committee Chairman George Miller, D-Martinez, on Wednesday morning will hold the first full House committee hearing on a bill that would bar employers from discriminating against employees on the basis of sexual orientation or gender identity.

H.R. 3017, the Employment Non-Discrimination Act, authored by Rep. Barney Frank, D-Mass., would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. For now, it’s legal to discriminate in the workplace based on sexual orientation in 29 states, and in 38 states based on gender identity.

Those scheduled to speak at Wednesday’s hearing include:

The bill’s 159 co-sponsors include the entire Bay Area delegation but for House Speaker Nancy Pelosi, D-San Francisco; the Speaker customarily refrains from cosponsoring, debating or voting on all but the most vital legislation.

The National Lawyers Guild San Francisco Bay Area Chapter, a liberal political and social justice nonprofit, yesterday delivered more than 100 complaints against former Defense Department General Counsel William Haynes – now chief corporate counsel for San Ramon-based oil giant Chevron – to the California State Bar’s offices in San Francisco.

The guild says the complaints came from ordinary Americans demanding that the State Bar thoroughly investigate and issue a written decision on Haynes’ actions and inactions at the Defense Department regarding the legal framework for indefinite detentions, military tribunals and “enhanced interrogation” – which many since have deemed torture – of terrorism suspects held at Guantanamo Bay. Complaints came mostly from California residents but also from as far away as Maine and Washington D.C., the guild said, and still are arriving by mail to the guild’s offices, all eventually to be forwarded to the State Bar.

“This campaign is appropriate because William Haynes was one of the lawyers shaping policy that harmed so many prisoners and put all of us in greater danger,” NLGSF Executive Director Carlos Villarreal said in a news release. “Anyone can file a complaint against a California lawyer, and while the process should never be abused, the process ought to be available to anyone and everyone when a lawyer commits wrongdoing from a position of power in our government resulting in such a devastating and widespread effect.”

The State Bar closed without prejudice – meaning, allowing the right to re-file – a more detailed complaint filed by the NLGSF in March; the NLGSF intends to ask for a formal review of that decision next week.

“The State Bar investigates and disciplines far less powerful attorneys who have committed far less egregious acts,” NLGSF Executive Board Member Sharon Adams of Berkeley said in the release. “It was surprising that they would close our complaint without even initiating an investigation. It seems to contradict one of the most important functions of the State Bar – to protect the public.”

“Haynes is still in a position to do great harm, undoubtedly shaping the actions of a major corporation that has committed human rights abuses around the world and had a major impact on our environment,” she added. “There is no doubt that the public needs to be proactive when a lawyer like Haynes is still granted the privilege of practicing law and crafting policies that will continue to have an enormous impact on people.”

I blogged last week about the Defense Department equating protests to “low-level terrorism” in an online training exam; today, the DoD says it will remove the question from its training module.

American Civil Liberties Union of Northern California staff attorney Ann Brick, who’d coauthored a letter of complaint to the department last week, said this afternoon she still hasn’t received a direct reply, but a Pentagon spokesman was quoted in a Fox News article earlier today:

“They should have made it clearer there’s a clear difference between illegal violent demonstrations and peaceful, constitutionally protected protests,” Pentagon spokesman Lt. Col. Les Melnyk said on Thursday.

Asked when a protest becomes an “illegal, violent demonstration,” Melnyk said, “I’m not a lawyer. I couldn’t get into the specifics of when you cross the line.”

“If you’re doing physical damage to people or property, that could fall into that,” he said.

[snip]

Of the Defense Department’s 3 million employees, 1,546 took the exam, Melnyk said. All will be sent e-mails “explaining the error and the distinction between lawful protests and unlawful violent protests,” he wrote in an e-mail.

“We’re pleased that they’re withdrawing it but it’s very troubling that the distinction between violent actions and peaceful protests got lost in the shuffle,” Brick told me this afternoon. “In addition to antiterrorism training, I think there is a need for some training on basic constitutional values.”

“It’s disturbing to think that the word ‘protest’ is automatically conjuring up an image of unlawful conduct. The one that should be conjured up is one of people exercising their constitutional rights – that should be the immediate image that pops to mind,” she said. “Even if it’s loud or angry, it’s still protected.”

The tenuous nature of the mass protests now unfolding in Iran should give Americans an even deeper appreciation of their right to dissent, Brick said.

The Fox News report notwithstanding, “we still need to have a conversation with the Department of Defense,” Brick said, to discuss how the question made it into the test in the first place, what’s being done to prevent such things in the future, and what kind of training might be undertaken.

Antiterrorism training materials used by the Department of Defense teach that public protests should be regarded as “low level terrorism,” according to a letter of complaint sent to the department today by the American Civil Liberties Union of Northern California.

“Teaching employees that dissent on issues of public concern is something to be feared, rather than encouraged, is a dangerously counterproductive use of scarce security resources, making us less safe as a democracy,” Northern California ACLU Staff Attorney Ann Brick and ACLU Washington National Security Policy Council Michael German wrote in the letter to Gail McGinn, Acting Undersecretary of Defense for Personnel and Readiness.

“DoD employees cannot accomplish their mission of protecting our nation and its values unless they understand that those values encompass the right to criticize our government through protest activities,” they wrote. “It is imperative that they are taught the difference between political, religious or social activism and terrorism.”

Among the multiple-choice questions included in its Level 1 Antiterrorism Awareness training course – an annual training requirement for all DoD personnel that is fulfilled through web-based instruction – the DoD asks the following: “Which of the following is an example of low-level terrorist activity?” To answer correctly, the examinee must select “protests.” The ACLU wants that changed immediately, and wants corrective information sent to all DoD employees who received the training.

The ACLU letter notes this is particularly disturbing in light of the long-term pattern of government treating lawful dissent as terrorism. Here in the Bay Area, my colleagues and I reported exactly this back in 2003, as the California Anti-Terrorism Information Center fed local police agencies information on protests, with catastrophic results. Two years after that, it was the California National Guard.

I guess I’m surprised not only that government hasn’t yet learned its lesson about equating the exercise of our cherished constitutional rights with terrorism, but also that it’s so incredibly obvious in doing so.

UPDATE @ 3:57 P.M. THURSDAY 6/18: Fox News says the Defense Department has dropped the question from its exam.

The No To Torture/John Yoo Must Go coalition — targeting the University of California Boalt Hall School of Law professor, former Justice Department attorney, and torture-memo author who tried to blow a gaping hole through the Fourth Amendment — has unveiled its first billboard, located on University Avenue near Milvia Street in Berkeley.

“Not speaking out and acting against torture allows torture practices to continue uncontested in violation of treaties against torture, to which the United States is a signatory,” said the news release. “The billboard expresses a call to action to stop gross misrepresentations of the law to continue in our names.”

Speaking at a news conference Thursday were human-rights activist Gerald Gray, who wants Cal alumni to withhold contributions until the school dumps Yoo; geographer and author Gray Brechin, who wants Cal faculty to publicly disavow Yoo; and Berkeley Peace and Justice Commission member Elliot Cohen, speaking about a proposed John Yoo resolution before the City Council. Collectively, they and the coalition want Yoo — who was rotisseried by the House Judiciary Committee last month — to be fired, disbarred, and prosecuted for war crimes; they’re trying to organize a “war crimes tribunal” this fall.

You might notice the billboard doesn’t actually name Yoo; coalition coordinator Curt Wechsler said a proposed design with Yoo’s name and an iconic Abu Ghraib figure was rejected by the billboard company:

Courage Campaign chairman Rick Jacobs this afternoon sent out an e-mail soliciting opinions on whether his group should revive its effort from late last year to convince the California Democratic Party to censure U.S. Sen. Dianne Feinstein, this time for supporting a bill amending the Foreign Intelligence Surveillance Act of 1978 to grant retroactive civil immunity to telecommunication companies which violated the law by cooperating with the Bush Administration’s warrantless wiretapping program.

From the e-mail:

“In 2007, Sen. Feinstein failed us by providing the deciding Judiciary Committee swing votes that paved the way for the appointments of Michael Mukasey, President Bush’s torture-condoning nominee for Attorney General, and Leslie Southwick, a racist and homophobic judge.

“And now, she has failed us on the Constitution itself, concealing a crime perpetrated by the Bush Administration and telecom companies against the American people.

“Despite thousands of calls from concerned citizens, virtually shutting down her phone lines for the last week, Sen. Feinstein failed to vote for the pivotal Dodd/Feingold amendment to the re-authorization of FISA that would have denied retroactive immunity to telecom companies for illegally wiretapping the phones of Americans. Sen. Feinstein then voted for the FISA bill itself, effectively pardoning George W. Bush.

“We’ve tried everything to get Sen. Feinstein’s attention. Phone calls. Emails. Faxes. Petitions. Protests. Smoke signals. We even launched an online petition supporting a proposed California Democratic Party censure resolution of Sen. Feinstein last November that spread like wildfire across the grassroots, with 35,039 Californians signing on in support.

Jacobs says people have been urging the Courage Campaign yesterday and today to renew the censure call, but “a censure resolution is merely a piece of paper unless there’s a people-powered movement behind it.” He wants people to vote by 5 p.m. next Tuesday.

“If Senator Feinstein cares about nothing else, she cares about her legacy,” Jacobs wrote. “At this moment, whether she knows it or not, Senator Feinstein’s place in history has been soiled by a decision that she will likely later regret, if only because it may have catalyzed concerned Californians to hold her accountable. Your decision could be crucial to holding Sen. Feinstein’s accountable now and defining her legacy later.”

My guess? People will vote overwhelmingly for censure, the petition will be revived, tens of thousands of signatures will be presented to the California Democratic Party’s executive board and… nothing. I’m just basing that on what one of the party’s top officials told me yesterday; although party chairman Art Torres last year had opined Feinstein wouldn’t let Democrats down on this issue, it seems clear the party wants nothing more than to move on now without saying a word.

Dems put forth budget,
Tax hikes make GOP mad.
What will Arnold do?

FISA changes pass
With votes from DiFi, Barack;
Fourth Amendment weeps.

Dems give Perata
a quarter mil for defense.
Will ‘The Don’ face charges soon?

Jesse Jackson speaks
unkindly of Obama,
eats crow for breakfast.

The U.S. Senate today passed a bill amending the Foreign Intelligence Surveillance Act (FISA) of 1978 so that telecommunications companies which cooperated with the Bush Administration’s warrantless wiretapping will receive retroactive immunity from lawsuits. The final vote came after several amendments seeking to strip out or curtail that immunity were defeated.

And how did the Senators whom Californians presumably find most important cast their votes? Presumptive Republican presidential nominee John McCain, R-Ariz., was absent for the vote, out on the campaign trail. And as for Barbara Boxer, Dianne Feinstein, Hillary Clinton and Barack Obama:

S.Amdt.5064, introduced by U.S. Sen. Chris Dodd, D-Conn., to strike the section of the bill granting retroactive immunity to telecommunications companies that cooperated with the Bush Administration’s warrantless wiretapping program:
Boxer: Yes
Feinstein: No
Clinton: Yes
Obama: Yes
Final tally: 32-66 (defeated)

S.Amdt.5059, introduced by U.S. Sen. Arlen Specter, R-Pa., to limit retroactive immunity for providing assistance to the United States to instances in which a federal court determines the assistance was provided in connection with an intelligence activity that was constitutional:
Boxer: Yes
Feinstein: No
Clinton: Yes
Obama: Yes
Final tally: 37-61 (defeated)

S.Amdt.5066, introduced by U.S. Sen. Jeff Bingaman, D-N.M., to delay any claim of retroactive immunity until 90 days after the date the final report of the Inspectors General on the President’s Surveillance Program is submitted to Congress:
Boxer: Yes
Feinstein: Yes
Clinton: Yes
Obama: Yes
Final tally: 42-56 (defeated)

Motion to invoke cloture (ending debate and bringing the bill to a vote) on H.R. 6304, amending the Foreign Intelligence Surveillance Act of 1978:
Boxer: No
Feinstein: Yes
Clinton: No
Obama: Yes
Final tally: 72-26 (passed)

On passage of H.R.6304, amending the Foreign Intelligence Surveillance Act of 1978:
Boxer: No
Feinstein: Yes
Clinton: No
Obama: Yes
Final tally: 69-28 (passed)

American Civil Liberties Union executive director Anthony Romero calls the bill “not only unconstitutional, but absolutely un-American;” the ACLU plans to sue to challenge it as soon as President Bush signs it into law.

UPDATE @ 5:10 P.M. WEDNESDAY: The liberal blogs are abuzz with dissatisfaction…

Glenn Greenwald at Salon: “With their vote today, the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country.”

DownWithTyranny: “…enough Democrats were bribed by the telecom companies to hand Bush the victory he lusted for…”

Steve Soto at The Left Coaster: “…gutted the Constitution… trashed the Fourth Amendment…”

Jane Hamsher at Firedoglake: “We need to punish those who stood against us.”

So it would seem Dianne Feinstein might have some ‘splainin’ to do to many of her constituents… but apparently not to the California Democratic Party, even though Chairman Art Torres late last year said Feinstein wouldn’t vote this way:

I said I think it’s important that you hear this from me because there’s also concern about the telecom immunity issue which will come before the senate judiciary committee. Don’t believe me, ask my friend Senator Dodd, who will tell you that she led the effort along with him to make sure that that wasn’t in the FISA bill that emerged from the senate judiciary committee. That bill as you know does not include the telecom immunity issue, which was a very important issue for me, and I’m proud that she listened, because she does.

So I contacted the party today to see if Torres would comment on today’s votes. I got a callback from party political advisor Bob Mulholland, who noted Obama voted for immunity today too as a compromise. “Our attitude as a political party is, let’s win the election and we can start cleaning up the constitutional mess Bush gave us,” Mulholland said.

With retroactive immunity, that is.