SENOR WYLIE: lay-kos explanation of recent El-Masri-(rendition lawsuit) Appellate Decision

An extremely important decision (link) came down from the Fourth Circuit Court of Appeals on Friday. The Fourth Circuit affirmed the lower court's decision that denied this plaintiff his day in court -- Mr. Khaled El-Masri, a falsely arrested prisoner and kidnap victim of the CIA rendition program.

The opinion was issued this past Friday, and whether it was an intended effect or not, IMHO, the blogosphere chatter hasn't sufficiently amped up over this decision, I regularly practice in Federal Court (sometimes i even get it right?!) and believe this is an important decision that should stir a lot more discussion, so i am spending my Sunday condensing this 24 page decision into an understandable and abridged explanation within this diary. I hope to finish to post it Monday and try to raise discussion and awareness of this outrageous result.

If you believe this is an important issue, please comment below and consider reccomending.

As stated in commentary to two well written but under received prior diaries,
Bad Day For Justice - El Masri Looses by Gary Norton and See Me Has A Human Being, Not A States Secret by OneCrankyDom.

the subject hasn't generated sufficient traffic,... yet.

BACKGROUND - LINKS FOR FURTHER INFO RENDITION PROGRAM

To see a documentary in which Mr. Masri is interviewed; Extraordinary Rendition, Torture and Disappearances in the 'War on Terror'.

For a full background and more in -depth explanation of the GHOST PLANES by Avila or the CIA Rendition program, read diaries by Armando here, here, and here and Plutonium Page here and here and by Frank.

Parties and Claims Overview - Procedural History

Mr. Masri was detained on December 31, 2003 and released on May 28, 2004.

Mr. Masri filed this complaint in the Eastern District of Virginia on Decembr 6, 2005 against George J. Tenet (CIA Chief during the imprisonment), 20 Unnamed Defendants of the CIA, and the three Corporate entities that owned and provided the GHOST PLANES - pilots and airplanes - used by the CIA to transport prisoners in the CIA Rendition program. MR. Masri brought three claims, one Bivens claim and two claims pursuant to the Alien Tort Statute, alleging prolonged arbitrary detention and cruel, inhuman or degrading treatment during this detention.

As explained by the Fourth Circuit (on page 3):

on December 31, 2003, while travelling in Macedonia, [Mr. Masri] was
detained by Macedonian law enforcement officials; after twenty-three
days in Macedonian custody, he was handed over to CIA operatives,
who flew him to a CIA-operated detention facility near Kabul,
Afghanistan; he was held in this CIA facility until May 28, 2004,
when he was transported to Albania and released in a remote area;
and Albanian officials then picked him up and took him to an airport
in Tirana, Albania, from which he travelled to his home in Germany.
The Complaint asserted that El-Masri had not only been held against
his will, but had also been mistreated in a number of other ways dur-
ing his detention, including being beaten, drugged, bound, and blind-
folded during transport; confined in a small, unsanitary cell;
interrogated several times; and consistently prevented from communi-
cating with anyone outside the detention facility, including his family
or the German government.

El-Masri alleged that his detention and
interrogation were carried out pursuant to an unlawful policy and practice
devised and implemented by defendant Tenet known as "ex-
traordinary rendition": the clandestine abduction and deten-
tion outside the United States of persons suspected of
involvement in terrorist activities, and their subsequent
interrogation using methointernational laws.

On March 8, 2006, pursuant to a specific rule of law (28 U.S.C. 517), the United States officially interceded in this case, asserting the Executive Privilege of "State Secrets" and seeking an immediate stay of the proceedings. On this date, the CIA Chief Porter Goss filed two affidavits, one classified and one not classified.

On March 9, 2006 the court granted the requested stay.

On March 13, 2006, the United States requested the dismissal of this lawsuit against all defendants, including the 3 corporate defendants.

On April 7, 2006, Mr. Masri's lawyers - The ACLU - filed a sworn declaration of Steven Macpherson Watt, a human rights adviser to the ACLU, that asserted multiple reasons that the STATE SECRETS were not so secret.

!. Multiple public officials had publicly recognized the existence of the rendition program including Condoleezza Rice, Scott Mclellan and CIA Chiefs Tenet and Goss.

2. Various Human RIghts Groups have Published statements and commentary on the renditon programs, some specifically referencing Mr. Masri's unlawful imprisonment.

3. The European Union and Council of Europe had commenced investigations into possible European cooperation in the US rendition program;

4. Similar investigations existed in at least eighteen countries.

5. Media Reports, 'too numerous to assemble" exist about the existence of the CIA rendition program, including specifics about the detention facilities where some rendition subjects were held, as well as the United States 'modus operandi' for conducting rendtions:

masked men in an unmarked jet seize their target, cut off his clothers, put him in a blindfold and jumpsuit, tranquilize him and fly him away.

.

(6&7 were additional factors that were raised and considered by the Appellate Court)

6. On June 6, 2006, The Coucil of Europe issued a draft report on United States renditions and detentions involving the Council's member countries.

7. On September 9, 2006, Pres. Bush addressed the nation and admitted the existence of the CIA rendition program.

Nonetheless, on May 12, 2006, the District Court granted the motion of the United States and dismissed this case in its entirety finding that the continuation of this litigation 'will expose militaryt matters which, in the interest of national security, should not be divulged.' U.S. v. Reynolds.

Mr. Masri has appealed this decision alleging that the

CIA's operation of a rendition program targeted at terrorism suspects, plus the tactics employed therein - have been so widely discussed that litigation concerning them could do no harm to National Securty. (page 16)

For a more detailed explanation of the arguments raised in the filings to the Fourth Circuit by Mr. Masri via the ACLU and by the Defendants, please see my prior diary, CIA Rendition Program Challenge Heard in 4th Circuit

STANDARD OF REVIEW - STANDARD OF STATE SECRETS

The opinion is, of course, well written and immediately informs us, on page 3, that it affirms the lower court's (the Eastern District Court of Virginia) dismissal of Mr. Masri's entire lawsuit based on the intervention of the United States Government.

The Appellate Court reviews the lower court decision de novo (page 6). This standard requires the reviewing Court to analyze the same facts and law as was available to the District Court, and simply decide if the lower court made the correct decision (as opposed to an abuse of discretion standard which would require a finding that the lower court abused its discretion in order to reverse the court).

Under the state secrets doctrine, the United States may prevent the disclosure of information in a judicial proceeding if 'there is a reasonable danger' that such disclosure 'will expose military matters which, in the interest of national security, should not be divulged.' (page 8)

Moreover, even though the State Secrets Doctrine was developed through signifcant cases that were brought in the past (including its recognition in favor of Aaron Burr in his 1807 trial for treason), the 4th Circuit held that this privilege serves a strong constitutional function because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities. (page 9).

Citing to Totten v. U.S., 92 U.S. 105 (1875), the 4th Circuit stated that

public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which law itself regards as confidential, and respecting which it will not allow the confidence to be violated. (page 8)

Then citing to United States v. Nixon, 418 U.S. 683 (1974), the 4th CIrcuit asserts that the Executive Privilege is at its broadest when it is in the realm of miltary and foreign affairs (page 11).

A court faced with a state secrets privilege question is obliged to
resolve the matter by use of a three-part analysis. (page 9).

i. Has the privilege been asserted through the correct procedure.

ii. Does the information that is being protected qualify as a state secret.

iii. Can the matter be defended without a reasonable danger that the state secrets would be exposed.



i. Has the privilege been asserted through the correct procedure.
--> a. must be asserted by U.S., b. formal claim of privilege by head of the department which has control of the matter that is being protected, and c. (GET THIS>> the department head has given actual personal consideration that the state secrets privilege is not to be lightly invoked.

ii. Does the information that is being protected qualify as a state secret.

---> this balancing test pits the Judicial branch abdicating judicial control over evidence in a case ... 'to the caprice of executive officers' - versus - placing too much of the President's ability to preserve state secrets at the mercy of the Courts (page 10).

However, after recognizing the delicate balance needed, the 4th Circuit then abdicates judicial control over evidence in this case to the Bush Administration claiming 'the court is obliged to accord the utmost deference to the responsibilities of the exectuve branch.' (page 11). The Court boot straps its own argument by being overly concerned with the ability of the Executive Branch to properly explain the rationale for the privilege without disclosing the very facts the privilege is attempting to protect.

Then in respect to a recent song by Laurie Anderson (i heard at the Old Knit 20th Anniversary Concert in NYC last week, but can't find on line at itunes or elsewhere) only the experts can really know what can be disclosed and what a state secret may look like.

the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. in the related context of confidentiality classification decisions, we have observed that '[t]he courts, of course, are ill-equipped to become sufficiently steeped in foregin intelligence matters to serve effectively in the review of secrecy classifications in that area. (citations omitted) The executifve branch's expertise in predicting the potential consequences of intelligence disclosures is particularly important given the sophisticated nature of modern intelligence analysis, in which '[t]he significance of one item of information may frequently depend upon knowledge of many other items of information,' and '[w]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.'

The 4th Circuit decided not to challenge the Executive Branch, while looking to another balancing test, this one as to the depth of investigation the Court should undertake before accepting the Executive assertion of the State Secrets privilege,

Indeed, in certain circumstances a court may conclude that an explanation by the Executive of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure.. (and) In such
a situation, a court is obliged to accept the executive branch’s claim of privilege without further demand. (page 12).

So, in essence, the 4th Circuit has made inconsistent arguments to reach their decision. On pages 20-21, it recognizes that Mr. Masri has raised additional questions (along with those raised by a group of former diplomats and State Department officials who have submitted a friend of the court brief in favor of Mr. Masri's claim going forwrad and against recognizing the State Secrets doctrine in this matter (footnote 6, page 22)) that:

1. Allowing the District Court ruling to be affirmed will enable the Executive to unilaterally avaoid judicial scrutiny by merely asserting that state secrets are at stake, and

2. The Court is duty bound to review Executive action and overcome the procedural protecdtions of the state secrets doctrine where 'egregious executive misconduct' is alleged.

After having already stated on page 12

in certain circumstances a court may conclude that an explanation by the Executivy of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure, and holding that in such a situation, a court is obliged to accept the executive branch's claim of privilege without further demand.

the 4th Circuit now contradits itself by holding on page 21 that it has not abdicated judicial review because

the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret.

On one hand, the Court says they haven't abdicated control of the process by requiring the Executive Branch to meet their burden of proof to assert the State Secrets privilege. Yet, on the other hand, the Court had already stated that in certain circumstances (and hasn't said whether this case was or was not one of those circumstances) the assertion of the privilege, coupled with a statement that any further information would create a reasonable danger of disclosing the protected information, would be stop any and all judicial review and allow the privilege to stand. BOOOOOOOOOOOOOOOOO!!!!!!

iii. Can the matter be defended without a reasonable danger that the state secrets would be exposed.


The 4th Circuit goes through pains to point out the voluminous manners in which the procession of this lawsuit would expose State Secrets to an unreasonable danger of exposure including:

by Mr. Masri to prove his case he would need:

1. To prove by admissible evidence that the defendants were involved in his detention and interrogation, requiring evidene exposing how the CIA organizes, staffs and supervises its most sensitive intelligence operations.

2. To show in detail how CIA Chief Tenet was involved and how he received information regarding the rendition program.

3. and with respect to the Defendant Corporations, to demonstrate the existence and details of CIA espionage contracts.


by the defendants to defend this lawsuit:

The main avenues of defense available in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not
involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability. Any of those three showings would require disclosure of information regarding the means and
methods by which the CIA gathers intelligence. If, for example, the truth is that El-Masri was detained by the CIA but his description of his treatment is inaccurate, that fact could be established only by dis-
closure of the actual circumstances of his detention, and its proof would require testimony by the personnel involved. Or, if El-Masri was in fact detained as he describes, but the operation was conducted
by some governmental entity other than the CIA, or another government entirely, that information would be privileged. Alternatively, if the CIA detained El-Masri, but did so without Director Tenet’s active
involvement, effective proof thereof would require a detailed explanation of how CIA operations are supervised. Similarly, although an individual CIA officer might demonstrate his lack of involvement in
a given operation by disclosing that he was actually performing some other function at the time in question, establishing his alibi would likely require him to reveal privileged information.
Moreover, proof of the involvement — or lack thereof — of particular CIA officers in a given operation would provide significant information on how the CIA makes its personnel assignments. Similar concerns would attach to evidence produced in defense of the corporate defendants and their unnamed employees.

Here is where the Legislature can stand up and make a necessary change. Apparently, in our modern society we need a special, secret Federal Court (think FISA) where civil cases involving State Secrets can be litigatted. A review of the fact patterns of the cases cited by the 4th Circuit in support of this opinion is a ride through hearbreak litigation lane.

There is simply no way, WE THE PEOPLE believe that if our Government or their contractors (GOV'T CONTRACTORS???), should wrong an individual that the individual or their faimilies should be barred from bringing a lawsuit seeking redress for that wrong. No. Simply, No. It is not Fair, it is wrong, look at these various fact patterns with the thought, is this the result that WE THE PEOPLE desire.




Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) (page 13) where an African-American CIA agent brought a lawsuit alleging unlawful discrimatory practices by CIA Management, DISMISSED.


Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998), where the plaintiff alleged that The Air Force had violated the Resource Conservation and Recovery Act in its storage, treatment and disposal of hazardous waste at a classified location near Groom Lake, Nevada. DISMISSED.


Bareford v. Gen. Dynamics Corp. , where the plaintiff alleged that a Government Contractor had design defects in its military weapons system. DISMISSED.

US v. Reynolds, 345 U.S. 1 (1953) , where an Air Force B-29 bomber had crashed during testing killing three civilian observers who were on board. Their widows brought suit against the U.S. and sought certain documents. The Air Force answered that the plane was on a highly secret mission and disclosure of these documents would hamper national security, flying safety and the development of highly technical and secret military equipment. DISMISSED.

Black v. United States, 62 F.3d 1115 (8th Cir. 1995) where it was alleged by Mr. Black that after he had reported suspicious contact with a possible Soviet spy, the CIA, FBI, Department of Defense and Department of State had subjected him to a campaign of harassment and psychological attacks including subjecting him to strange phone calls, having his apartment and car being broken into, being drugged with a substance that produced terrifying halluncinations. DISMISSED.

MISC.THOUGHTS AND CONCLUSION

1. Was this a unanimous Court decision?

Sort of. It was a panel of 3 judges and the opinion issued was 3-0. However, in cases of legal importance and weight, the Appellate Court may choose to rule en banc. That is, rule by the entire panel of 4th Circuit judges. Since this case was not ruled on, en banc , it could be argued in good faith, that its unanimity is not quite the same level of strenght as a unanimous Supreme Court decision (which is almost always en banc) (note, i haven't researched the en banc rules, so take this info with a grain of salt.

2. Likelihood of Supreme Court Review.

For this case to be heard by the Supreme Court, Mr. Masri would have to file a certiorari to the Supreme Court asking to be heard in this matter. The Court reviews these certs to determine if there is a strong federal question or a question of law that hasn't been reviewed by the Supremes earlier and as a result, the lower Circuit Court of Appeals have had inconsistent and differing standards and opinions developing.

As there are other cases throughout the country right now that do impact the State Secrets doctrine, it is quite possible that a strong argument could be made to the Supremes why this case should be heard.

Oher cases include:

i. Al-Haramain Islamic Foundation Inc. v. Bush, 2006 WL 2583425 (D.Or. 9/7/06)
ii. ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) My First Ever Diary Summarized this decision
iii. Hepting v. AT&T, 439 F.Supp.2d 974 (N.D.Cal 7/20/06)

Rendition Program Challenge Heard in 4th Circuit

Oral Arguments were heard yesterday in the 4th Circuit Court of Appeals in Virginia in a case arising out of the mistaken extraordinary rendition of a German citizen, Khaled el Masri.

Khaled el Masri, a German citizen was falsely arrested/abducted by the CIA on New Years Eve, December 31, 2003 in Macedonia. He was flown to a prison in Afghanistan, held for five months where he claims he was shackled, beaten and injected with drugs.

In May, a District Court Judge dismissed this lawsuit based upon the CIA argument that defending the suit would necessitate the disclosure of state secrets. Yet, many great attorneys have been busy since May. In its reply brief, the ACLU cited three separate District Court opinions that “have “rejected sweeping assertions of the state secrets privilege nearly identical to the” claim put forth by the CIA in this case. The ACLU argues that these other courts

have embraced a common-sense approach to accommodating the twin goals of security and accountability that is wholly at odds with the radical theory of executive power advanced by the United States in their defense of this suit.

The ACLU brief cites three arguments in support of its request that the District Court decision be reversed and the case reinstated and allowed to proceed.

I. Three recent district court decisions have rejected the government’s argument that the state secrets privilge justifies dismissal of a case at the outset.

The three cited cases are:
i. Al-Haramain Islamic Foundation Inc. v. Bush, 2006 WL 2583425 (D.Or. 9/7/06)
ii. ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) My First Ever Diary Summarized this decision
iii. Hepting v. AT&T, 439 F.Supp.2d 974 (N.D.Cal 7/20/06)

II. This case can be litigated without disclosure of means, methods, and operational details of the CIA’s clandestine activities

Similar to the creative tool raised in the ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) , the ACLU uses Bush’s words in support of their argument.

In fact, just ast the President’s confirmation that fourteen suspected terrorists had been detained and interrogated by the CIA did not reveal classified ‘means and methods’ that were unknown to the public, it is highly likey that Mr. El-Masri would be able to establish defendant’s liability without such revelations.

The ACLU, citing a recent Council of Europe report argues that the cat is already out of the bag.

Moreover, the manner in which the CIA operates its rendition programs is by now widely known and has been publicly aired not only in the media but in the official reports of foreign governments.

In its legal brief, it then restates chilling portions of the standard modus operandi of the extraoridnary rendition program.

i. it generally takes place in a small room (a locker room, a police reception
area) at the airport, or at a transit facility nearby.

ii. the man is sometimes already blindfolded when the operation begins, or
will be blindfolded quickly and remain so throughout most of the operation.

iii. four to six CIA agents perform the operation in a highly-disciplined,
consistent fashion – they are dressed in black (either civilian clothes or special
'uniforms'), wearing black gloves, with their full faces covered. Testimonies
speak, variously, of “big people in black balaclavas”, people “dressed in
black like ninjas”, or people wearing “ordinary clothes, but hooded”.

iv. the CIA agents “don’t utter a word when they communicate with one
another”, using only hand signals or simply knowing their roles implicitly.

v. some men speak of being punched or shoved by the agents at the beginning
of the operation in a rough or brutal fashion; others talked about being
gripped firmly from several sides

vi. the man’s hands and feet are shackled.

vii. the man has all his clothes (including his underwear) cut from his body
using knives or scissors in a careful, methodical fashion; an eye-witness
described how “someone was taking these clothes and feeling every part, you
know, as if there was something inside the clothes, and then putting them in a
bag”.

viii. the man is subjected to a full-body cavity search, which also entails a
close examination of his hair, ears, mouth and lips.

ix. the man is photographed with a flash camera, including when he is nearly73
or totally naked74; in some instances, the man's blindfold may be removed for
the purpose of a photograph in which his face is also identifiable75.

x. some accounts speak of a foreign object being forcibly inserted into the
man's anus; some accounts speak more specifically of a tranquiliser or
suppository being administered per rectum76 - in each description this practice
has been perceived as a grossly violating act that affronts the man’s dignity.

xi. the man is then dressed in a nappy or incontinence pad and a loose-fitting
"jump-suit" or set of overalls; “they put diapers on him and then there is some
handling with these handcuffs and foot chains, because first they put them on
and then they are supposed to put him in overalls, so then they have to
alternately unlock and relock them”.

xii. the man has his ears muffled, sometimes being made to wear a pair of
"headphones"

xiii. finally a cloth bag is placed over the man's head, with no holes through
which to breathe or detect light; they “put a blindfold on him and after that a
hood that apparently reaches far down on his body” .

xiv. the man is typically forced aboard a waiting aeroplane, where he may be
“placed on a stretcher, shackled”, or strapped to a mattress or seat, or “laid
down on the floor of the plane and they bind him up in a very uncomfortable
position that makes him hurt from moving”.

xv. in some cases the man is drugged and experiences little or nothing of the
actual rendition flight; in other cases, factors such as the pain of the shackles
or the refusal to drink water or use the toilet make the flight unbearable: “this
was the hardest moment in my life”.

xvi. in most cases, the man has no notion of where he is going, nor the fate
that awaits him upon arrival.

Tactially, attorneys writing Appellate Briefs often try to pepper their briefs with quotes for the Court to utilize in their opiinions. If this section of the ACLU brief is repeated in the legal opinion it will be, IMHO, historicdally important as it will be part of a legal opinion that will be read and re-read by future lawyers, teachers and historians.

The ACLU's third argument in its reply brief:

III. The United States misapprehends the significance of the widespread dissemination of information about Mr. El-Masri’s case and the rendition program, and entirely ignores substantial corroborating evidence of Mr. El-Masri’s allegations.

Again, attempting to prove that no state secrets will be disclosed as much of the ‘secrets’ have already been disclosed and other, undisclosed, facts are simply unnecessary to adjudicate this dispute.

Interestingly, Mr. Masri's attorney has stated that although he believes he is entitled to financial compensation, he is not necessarily seeking anything beyond some official expression of remorse.

Procedurally, Federal Lawsuits begin by a filing in District Court, as this matter was initially filed in the Western District of Virginia. Once the District Court Judge dismissed the case, an appeal was filed with the relevant Circuit Court of Appeals (4th). My experience with Circuit Court of Appeals is that a decision can be issued rather quickly, within a few weeks, or can be very slow and take more than one year.

For an amazing array of information and documents including flight logs and memorandum and briefs filed http://www.aclu.org/safefree/torture/rendition.html

Fantastically, the ACLU not only named the CIA and George Tenet as defendants in this suit, but also:


Premier Executive Transport Services,

located in Dedham, MA . PETS was the owner of the Boeing business jet 737-7ET, formerly registered with the Federal Aviation Authority as N313P and now registered as N4476S. The jet was used to transport Khaled El-Masri from Skopje, Macedonia to detention and interrogation in Afghanistan. The registration of the jet was changed shortly after media reports identified the aircraft's involvement in the CIA's rendition program. The company remains on the register of companies in Massachusetts.

Keeler and Tate Management LLC,

headquartered in Reno, Nevada. Records show that Keeler and Tate purchased the Boeing jet in December 2004; the company is being sued by the ACLU as the corporate successor to PETS. The ACLU has also charged that the transfer of the aircraft to Keeler and Tate was fraudulent because it was done in order to avoid detection and potential liablity for PETS' involvement in the illegal transport of El-Masri. In legal papers the ACLU said that the company is a "front" established to continue PETS' illegal transportation business.

Aero Contractors, Ltd.,

headquartered at the Johnston County Airport in North Carolina. Aero was contracted by PETS to operate the Boeing jet; the company handled the transport of Khaled El-Masri from Skopje to Afghanistan. According to The New York Times, Aero Contractors is "a major domestic hub of the Central Intelligence Agency's secret air service. The company was founded in 1979 by a legendary CIA officer and chief pilot for Air America, the agency's Vietnam-era air company, and it appears to be controlled by the agency, according to former employees." ("CIA Expanding Terror Battle under Guise of Charter Flights," The New York Times, May 31, 2005). Earlier this month, 12 members of North Carolina's State House wrote to the State Board of Investigations calling for an investigation of Aero's involvement in activities "that would not have been legal in the United States.

The ACLU has said that if they win the Appeal they may seek to amend their complaint to add Boeing as they have received information connecting Boeing to the rendition program. In a statement to the Spanish police, the head of a local aviation company, Mallorcair, confirmed that his company received instructions from Jeppessen International Trip Planning, a Boeing subsidiary, for handling local logistics for the plane used to transport Khaled El-Masri and others.

CELEBRATE - NOT - DENIGRATE

REPEAT AFTER ME:

T H E R E I S E N O U G H C R E D I T T O G O A R O U N D.




Quite simply, it was a great effort by many folks of different beliefs and political persuasion. Together we took back the House and the Senate without utilizing any consistent message other than we are not Bush. IMHO, there were so many shades on Iraq, that there was no consistent talking point used.

This is what we all worked hard for, what we blog for, what we pay attention for, and what, at tiimes, we may have been even too scared to hope for,

In the aftermath of a great Tuesday Night - Midterm Election - there was a quick lob of a hand grenade into the united Democratic Front by the ragin cajun himself, James Carville. Now, IMHO there are probably some necessary institutional challenges (think Murtha v. Hoyer for House Majority Position) that do not denigrate but make our party better, but challenging the good Doctor in wake of this victory is assinine.

The 50 state strategy somehow seems to still need defending:

A 50 state strategy that had solid candidates across the board; and candidates that were in a position to win when the page scandal and other Republican black marks broke.

A 50 state strategy that had a candidate challenging the FL-Foley Seat,

A 50 state strategy that had a candidate challenging PA-Sherwood seat (the prior 2 previous elections he ran unopposed)

A 50 state strategy that had us pick up a seat in (what's the matter with) Kansas.

A 50 state strategy that had Dick Cheney and the RCCC spending time and money in Nebraska and Wyoming.


Netroots: remember we have a big tent, that is how we won , how we will continue to win. We supported DEM candidates that maybe were not our first choice and perhaps we didn't agree with on issues we considered important. THink of candidates like

a. bob casey
b. Harold ford
c. Heath shuler



Now i know that it may be difficult to swallow, but Rahm Emanuel is a master politician who we should be thrilled is a DEM and not a Republican. I mean, come on he is JOSH LYMAN, his brother is ARI GOLD.

Do we not at least respect someone who was elected to Congress just 4 years ago, but now has headed the DCCC when they took back the house and just maneuvered into being given the majority whip spot,
Remember, the Use it or Lose It campaign??? That NETROOTS campaign pushed money to the DtripleC, not the ACT BLUE PAGES. And apparently, RAHM HAS DISTANCED HIMSELF from the CARVILLE CRAP.

How 'bout the respect given to us by another master politician, Chuck Schumer. : politically, do we at least not respect someone who was finally able to retire Alfonse D'Amato, have his #1 mentee win his Congressional seat and become poised to be an early favorite to be the next Mayor of N Y C (Anthony Weiner), a Senator who was one of the only bright spots in the 2004 election with his 71% reelection, largest win in N Y Statewide Political History and who raised enough money to help the ad buys late in the election cycle for the netroot fave Senator Tester (emphasiszing that the MSM believed Burns' Tester is a Taxer Ad was a big fat misrepresentation). Senator Charles Schumer is a great politician, a term usually associated with Republicans. Let's not challenge his ascension to a postion of power in the Democratic Hierarchy,

Let's work with Senator Schumer.

He has set out a a 3 Point Agenda

How 'bout, we don't attack him, but we work with him, starting by asking him some tough questions:

* Controlling the hires of candidates' top campaign staff.

who do you mean? Bob Schrum? Let's get hims some names of top campaign staff we like, we believe in.

* Giving $1 million off the bat to vulnerable incumbents in red states to scare off Republican challengers.

let's give him some thoughts on who the vulbnerable incumbents are and who we like to run against them

* Signing off on campaign ads and requiring candidates respond within 24 hours of an attack against them.

isn't this what we want? don't we agree with this strategy?

So, let's enjoy our victory, Let's gear up for 2008 and let's work with our BIG TENT TEAM and our supertar politicians and realize that means that they may take more credit than we want to give them, but they are politicians. We have been accepted at the dance, we are part of the in crowd now, let's use this to push our agenda and the DEMS, and not take our eye off the prize.

Post Elections Thoughts and Update

As of Noon, Thursday, November 8, the Dems have won 27 seats that were Republican seats in the last term. Of those, 19 were won by Dems who defeated Incumbent Republicans and 8 were won by Dems for an open seats that had a Repulbican incumbent who did not run for re-election (think Tom Delay, Mark Foley)

Senate Update

Only two races left without a declared winner Montana and Virginia, both have Dems leading and are expected to be Dem seats, thereby giving the Dems almost a clean sweep in Federal Races. Harod Ford in TN seems to be the lone Dem Senate race that could have been a pick-up that wasn't. Not one Democratic Incumbent in the Senate or the House lost their seat.

Biggest Dissapointment in an otherwise great Election Night

New York State Senate Results

How is it possible that only one seat was picked up and we must try again in two years to pick up the final two seats needed to take control of the New York State Senate. I still believe that with the 60%+ victories at the top of the Tickets (Spitzer 69%, Clinton 66% ) and the 15%+ victories by Cuomo 17%, even Hevesi 17%), the inability to pick up more than this one race (where Andrea Stewart-Cousins had probably won this race 2 yearsa ago but for some voter fraud that gave Spano an 18 vote win) is a the lone negative mark on an otherwise great night. Why wouldn't Eliot Spitzer, with a war chest in the millions, not join the spirit of the USE IT OR LOSE IT campaign and donate even $100,000 to 7 or 8 competitive races. Races where the total raised by either candidate rarely exceeded $100,000...
Money Raised in NY State Senate Races

But, this was a great night and a lot of people need to sit back and take some moments to enjoy this moment. With last night’s decisive election, taking both the house and the Senate, the 'Conservative Ascendency' that began with Ronald Reagan in 1980 has come to an end, and I think, hope, that the rise of the 'Progressive Democratic Majority' has begun.

House Seat Overview:

From Daily Roll Call

Democrats who have defeated incumbent Republicans:


Arizona’s 5th: Harry Mitchell (D) 51 percent, J.D. Hayworth (R) 46 percent

California’s 11th: Jerry McNerney (D) 53 percent, Richard Pombo (R) 47 percent

Connecticut’s 5th: Chris Murphy (D) 56 percent, Nancy Johnson (R) 44 percent

Florida’s 22nd: Ron Klein (D) 51 percent, Clay Shaw (R) 47 percent

Indiana’s 2nd: Joe Donnelly (D) 54 percent, Chris Chocola (R) 46 percent

Indiana’s 8th: Brad Ellsworth (D) 61 percent, John Hostettler (R) 39 percent

Indiana’s 9th: Baron Hill (D) 49 percent, Mike Sodrel (R) 46 percent

Iowa’s 2nd: Dave Loebsack (D) 51 percent, Jim Leach (R) 49 percent

Kansas’ 2nd: Nancy Boyda (D) 51 percent, Jim Ryun (R) 47 percent

Kentucky’s 3rd: John Yarmuth (D) 51 percent, Anne Northup (R) 48 percent

Minnesota’s 1st: Tim Walz (D) 53 percent, Gil Gutknecht (R) 47 percent

New Hampshire’s 1st: Carol Shea-Porter (D) 51 percent, Jeb Bradley (R) 49 percent

New Hampshire’s 2nd: Paul Hodes (D) 53 percent, Charles Bass (R) 45 percent

New York’s 19th: John Hall (D) 51 percent, Sue Kelly (R) 49 percent

New York’s 20th: Kirsten Gillibrand (D) 53 percent, John Sweeney (R) 47 percent

North Carolina’s 11th: Heath Shuler (D) 54 percent, Charles Taylor (R) 46 percent

Pennsylvania’s 4th: Jason Altmire (D) 52 percent, Melissa Hart (R) 48 percent

Pennsylvania’s 7th: Joe Sestak (D) 56 percent, Curt Weldon (R) 44 percent

Pennsylvania’s 10th: Chris Carney (D) 53 percent, Don Sherwood (R) 47 percent


GOP open seats lost:


Arizona’s 8th: Gabrielle Giffords (D) 54 percent, Randy Graf (R) 42 percent

Florida’s 16th: Tim Mahoney (D) 49 percent, Mark Foley/Joe Negron (R) 48 percent

Colorado’s 7th: Ed Perlmutter (D) 55 percent, Rick O’Donnell (R) 42 percent

Iowa’s 1st: Bruce Braley (D) 55 percent, Mike Whalen (R) 43 percent

New York’s 24th: Michael Arcuri (D) 54 percent, Ray Meier (R) 45 percent

Ohio’s 18th: Zack Space (D) 62 percent, Joy Padgett (R) 38 percent

Texas’ 22nd: Nick Lampson (D) 52 percent, Shelley Sekula-Gibbs (R) 42 percent

Wisconsin’s 8th: Steve Kagen (D) 51 percent, John Gard (R) 49 percent


Key races still not called (incumbents are marked with *):


Connecticut’s 2nd: Joe Courtney (D) 117,434, Rob Simmons (R)* 117,211; 97 percent reporting

Georgia’s 8th: Jim Marshall (D)* 80,401, Mac Collins (R) 78,719; 98 percent reporting

Georgia’s 12th: John Barrow (D)* 69,991, Max Burns (R) 66,604; 96 percent reporting

New Mexico’s 1st: Heather Wilson (R)* 100,027, Patricia Madrid (D) 98,724; 99 percent reporting

Ohio’s 2nd: Jean Schmidt (R)* 113,932, Victoria Wulsin (D) 111,609; 100 percent reporting

Ohio’s 15th: Deborah Pryce (R)* 119,208, Mary Jo Kilroy (D) 107,947; 100 percent reporting

North Carolina’s 8th: Robin Hayes (R)* 60,500, Larry Kissell (D) 60,032; 100 percent reporting

Pennsylvania’s 6th: Jim Gerlach (R)* 118,807, Lois Murphy (D) 115,806; 100 percent reporting

Pennsylvania’s 8th: Patrick Murphy (D) 125,667, Michael Fitzpatrick (R)* 124,146; 100 percent reporting

Washington’s 8th: Dave Reichert (R)* 61,555, Darcy Burner 58,900; 31 percent reporting

Wyoming At-Large: Barbara Cubin (R)* 91,828, Gary Trauner (D) 91,006; 99 percent reporting

Election Day Live Blogging: New York State Senate Races

This is a diary for the Daily Kos Election Results Live Blogging project. This diary will be used to cover the results of the following elections: NYS-2, NYS-3, NYS-11, NYS-15, NYS-24, NYS-35, NYS-40, NYS-41, NYS-42, NYS-45, NYS-47, NYS-49



NY1 has called

NY Governor Eliot Spitzer

NY Senator Hillary Clinton

NY Attorney General Andrew Cuomo

However, since Polls are just closing now, this is clearly based on some exit polling and past polls.

UPDATE 11:25pm

seems like the only chance ona pickup will be Andrea Stewart-Cousins, all other races do not seem to breaking towards the Democratic Challengers, surprising with such big wins by Spitzer and Clinton

Update 12:52 pm

reporting

NYS-35 85% reporting

Nicholas Spano (R)    33,755b             49.16%

 Andrea Stewart-Cousins (D)  34,904    50.84%

NYS-2  77% reporting

John J Flanagan (R)  34,006    59%

Brooke Ellison (D)    22,848    40%

NYS-3  99% reporting

Caesar Trunzo (R)   31,002    54%

Jimmy Dahroug (D)  25,811    44%

David Ochoa (W)      167    2.78%

NYS-11 99% reporting

Frank Padavan (R) 29,787    60%

Nora C Marino (D) 62 19,795    40%

NYS-15 100% reporting

Serphin Maltese (R) 17,122    51.17%

Albert Baldeo (D)     16,339    48.83%

NYS-24 100% reporting

Andrew Lanza (R)    32,236    57.10%

Matthew Titone (D)  22,076    39%

Charles Pistor (C)    2,208    3.9%

NYS-35 85% reporting

Nicholas Spano (R)    33,755bsp;          32,695    49.16%

 Andrea Stewart-Cousins (D)  34,904    50.84%

NYS-40 94% reporting

Vincent Leibell (R)      46,397    56.21%

 
Michael Kaplowitz (D) 36,150    43.79%

NYS-41 100% reporting

Stephen Saland (R) 50,355     58.83%

Brian Keeler (D)    35,238    41.17%

NYS-42 99% reporting

John Bonacic (R) 49,820    57.77%

Susan Zimet (D) 36,421    42.23%

NYS-49 99% reporting

David J Valesky (D)   50,352    59.35%

 Jeff Brown (R)          34,617    40.65%

- BREAKING - Election Fraud: ALERT YOUR LOCAL CAMPAIGN OFFICE

With the excellent HACKING DEMOCRACY being aired on HBO the past few days, Progressive Activists are being asked to call their local campaign with one simple message:

DO NOT CONCEDE.


from Tracey Denton of DFANYC

In early voting in Florida and Missouri, there are already reports of voting machines switching to Republican when the voter presses Democrat. Here in New York, Republicans are intimidating minority voters in key races. If the Republicans win by these illegal tactics, we want the mainstream media to expose this. Please tell the candidates you support NOT to concede if there are problems with the vote count

Jerry McNerney, the candidate running against Pombo in California, has told me that he will not concede if there are problems with the electronic voting machines in his race. If you find that there are other candidates that pledge not to concede, please let me know: tdenton@dfnyc.org.

From Josh Pepper

This year, with all of us having great concern that election results may have no guarantee of accuracy, we are asking all candidates not to concede defeat in close elections or when any allegations of voting improprieties occur. We may never know whether an election is stolen. If there are doubts about the proper vote count, the media are not likely to pay much attention when a candidate concedes the race to his or her opponent. By contrast, if a candidate contests the election results, the media see a story and are more likely to cover the allegations of improprieties. When a candidate concedes an election, even where there have been serious allegations of election improprieties, the media go away and give virtually no coverage to the allegations of fraud. This occurred after John Kerry's concession in 2004 and Francine Busby's concession after the June 7th special election for Congress in San Diego this year. By contrast, the media will pay close attention to election problems when candidates do not concede, such as the presidential election of 2000 and the State Senate race in 2004 between Andrew Stewart-Cousins and Nick Spano. Only when the media stick around will the difficult questions be asked so that, if anyone should attempt to steal an election, the truth is more likely to be exposed.

Although we all want to believe that our elected officials will ensure that all votes are counted accurately, experience shows otherwise. Polls are showing that more and more people believe that their votes will not count. And they have reason to be concerned. Already, accounts of voting machine failures, power failures, and outright voter intimidation are interfering with the democratic process. For example, here in New York State, Republican State Senator Nick Spano challenged approximately 5000 minority voters and asked the police to visit these voters in their homes to check on whether they lived there. Some links to other reports are here:
http://www.bbvforums.org/cgi-bin/forums/board-auth.cgi?file=/8/44859.html
http://www.truthout.org/docs_2006/102606Z.shtml
http://www.miami.com/mld/miamiherald/news/local/states/florida/counties/broward_county/15869924.htm
http://www.bradblog.com/?p=3675

I know many of us are contributing and volunteering for candidates this year. So please take a moment to call the campaigns of the candidates you support and ask them to pledge not to concede. It's the only way to truly expose the electoral problems we have had, and likely will have, in our election system. Every close election should be closely monitored and reviewed with media broadcasting everything for the country to see. Then, and only then, do we have the best chance that every declared election winner will be the candidate who actually received the most votes.

i've heard MARK CRISPIN MILLER, GREG PALAST, RAY BECKERMAN all discuss how the 2004 election was stolen. SIMON ROSENBERG of NDN believes that election fraud is an issue that must be taken up by the Democratic Party. The branding is simple, The Dems are the party that wants you to vote, the Republicans are the party that doesn't want you to vote.

if there is a huge win for the Dems on tuesday, fully expect the republicans to scream election fraud and try to quickly pass some bad legislation requiring voter i.d. and electronic voting machines.

but, for fcks sake, call your local candidate , whoever you are supporting, and urge them to read the message from the DFANYC and pledge to not concede without an examination of the voter fraud issue.

STOP WHINING AND MAKE CHANGE: 3 things every KOSSACK needs to do before 11/7

'm preaching to the choir, but with all the bitching and moaning going on in the progressive and dem circles and around the iconic water coolers, it needs to be said:

DON'T JUST TALK, STEP UP TO MAKE A DIFFERENCE, WALK THE WALK,

1.  Sign up for CALL FOR CHANGE

2.  Call a Congressperson on the USE IT OR LOSE IT ,

3. Encode your blog or website with the GOOGLE BOMB Election Source Codes

thanks to our friends Chris Bowers and Move On, we don't need to do the heavy lifting, it's been done for us.  we only have to show that our numbers are about more than simply complaining,

 but that we are ACTUALLY DOERS.

1. Sign up for  CALL FOR CHANGE.

This past week i spent a few hours in the Brooklyn office of Move On making calls to the choir, those already on the Move On email list.  I was urging these people to sign up for CALL FOR CHANGE.  This program will provide you with targeted voters phone numbers for you to call at the privacy of your own home at any time you like.  If it is earlier in the day, you will be provided with East Coast targeted Congressional districts to call.  Later in the day, you will be provided with targeted West Coast districts to call.

Perhaps, sending this link out to other friends, or inviting others over the night before the election to make calls together and get all excited about the election.

That's it, perhaps justy one hour to commit this week and then an hour per day next.  

2.  Call a Congressperson on the USE IT OR LOSE IT , even if you have already called once, follow up.  in light of the recent additions to the participant list of USE IT OR LOSE IT, a second (or third or fourth) polite call is in order and appropriate.  

Use it Or Lose It Participants:

Hilda L. Solis, Calif. (32)

Grace Napolitano, Calif (38)

Barney Frank, MASS (4)

Norm Dicks, WA (6)

Under Review:

Earl Blumenauer, OR (3)

Jerrold Nadler, N.Y. (8)

John Lewis, D-Ga. (5)

Diana DeGette, Colo. (1) (pending)

Adam Schiff, Calif (29) ($160k, 30% = $425K)

Also,according to a recent Chris Bowers posting at MYDD Kerry and Kennedy are each about to give $500,000 to the DSCC

My suggested Congressperson chat:

"Hi, my name is Joan T. Public, i am a constituent.   Last week i called to find out if my Congressperson was goingn to participate in the 30% challenge.  I just wanted to update the Congressperson that  there are quite a few Congresspeople who have committed to participate.  According to public records, there is $__ in your campaign account.   I am sure you have raised significant funds for other candidates already and have paid your dues to the DCCC (DSCC), but with less than 2 weeks left before this election, this is a watershed moment in our political life.  Please consider joining these other fine Congresspeople and donate 30% of your political account, approximately $___ to the DCCC or DSCC or a specific candidate of your choice."

Chris has updated the ask during these calls:

FROM MYDD

Given all this, I suggest changing the way that you call Democrats today. Instead of your usual pitch, try for the following:

Ask ultra-safe Democrats not only to give to the DCCC and Democratic House challengers, but also to release a statement on their giving. This statement can appear on their website, in a press release, or simply over email.

If the conversation goes further, you can also mention the following:

1. In this statement, ask ultra-safe Democrats to detail how much they have given this cycle, how much they have given since September 30th, and to encourage other Democrats to continue giving.

2. Also in the statement, ask them to endorse the Use It Or Lose It campaign, without any requirement saying that they gave as a result of the program.

3. Tell them there will be media benefits, both online and offline, for doing this.

We don't need credit. What we need are the resources that will allow us to full-fund our enormous amount of competitive House challengers to Republican-held seats. We may not see this many again for a long, long time. We need the funds there, and now. Make the calls.

Be sure to report your call

This is probably no more than 10 minutes of your time.

3. Encode your blog or website with the GOOGLE BOMB Election Source Codes

i must admit this is above my abilities, but it is all explained here

HOW TO ENCODE YOUR BLOG/WEBSITE

apparently, if you encode the language rather than simply pasting a link, it becomes geometrically more powerful/efficient.

If you know what you are doing, another ten minutes.  If not, probably closer to half an hour.

So for all of us feeling empowered by knowledge, please do not feel helpless to make change.


--AZ-Sen: Jon Kyl

--AZ-01: Rick Renzi

--AZ-05: J.D. Hayworth

--CA-04: John Doolittle

--CA-11: Richard Pombo

--CA-50: Brian Bilbray

--CO-04: Marilyn Musgrave

--CO-05: Doug Lamborn

--CO-07: Rick O'Donnell

--CT-04: Christopher Shays

--FL-13: Vernon Buchanan

--FL-16: Joe Negron

--FL-22: Clay Shaw

--ID-01: Bill Sali

--IL-06: Peter Roskam

--IL-10: Mark Kirk

--IL-14: Dennis Hastert

--IN-02: Chris Chocola

--IN-08: John Hostettler

--IA-01: Mike Whalen

--KS-02: Jim Ryun

--KY-03: Anne Northup

--KY-04: Geoff Davis

--MD-Sen: Michael Steele

--MN-01: Gil Gutknecht

--MN-06: Michele Bachmann

--MO-Sen: Jim Talent

--MT-Sen: Conrad Burns

--NV-03: Jon Porter

--NH-02: Charlie Bass

--NJ-07: Mike Ferguson

--NM-01: Heather Wilson

--NY-03: Peter King

--NY-20: John Sweeney

--NY-26: Tom Reynolds

--NY-29: Randy Kuhl

--NC-08: Robin Hayes

--NC-11: Charles Taylor

--OH-01: Steve Chabot

--OH-02: Jean Schmidt

--OH-15: Deborah Pryce

--OH-18: Joy Padgett

--PA-04: Melissa Hart

--PA-07: Curt Weldon

--PA-08: Mike Fitzpatrick

--PA-10: Don Sherwood

--RI-Sen: Lincoln Chafee

--TN-Sen: Bob Corker

--VA-Sen: George Allen

--VA-10: Frank Wolf

--WA-Sen: Mike McGavick

--WA-08: Dave Reichert

Fidel Era Over: NDN Poll Finds S.Fla Cubans Overwhelmingly Believe Democracy will happen w/n 5 Years

Earlier Today, NDN released a NDN Cuban Poll that indicates

The influential South Florida Cuban exile community overwhelmingly believes that the era of Fidel Castro is over, and is newly hopeful for a speedy and peaceful transition to democracy, according to the first major poll taken since Castro's hand-over of power due to illness.

The Poll was picked up by the local MSM, the Miami Herald under the headline

MIAMI Cubans: Fidel era over  

Interesting within the report of this Poll is that a super-majority (74%) of Cuban Americans  believe Fidel Castro is terminally ill.

Some interesting quotes from the Herald article include

"'Fidel Castro is politically dead, and for all intents and purposes a relic for the history books,'' said Fernand Amandi, executive vice president of Bendixen & Associates.

and one from Joe Garcia, the Director of NDN's Hispanic Strategy Center,

NDN executive Joe Garcia said the poll shows that Cuban Americans and exiles are optimistic about the future, but perhaps frustrated with President Bush's handling of U.S.-Cuba policy in the wake of Fidel Castro's transfer of power.

NDN HAS BEEN AT THE FOREFRONT OF THE HISPANIC VOTE FOR PROGRESSIVE DEMS AND HAS EVEN CREATED  THE HISPANIC STRATEGY CENTER

They ran incredible radio ads during the 2004 Election cycle targeting Hispanics and they took an excellent opportunity during this past summer's World Cup to preach to the non-choir, the Latin community who should be big suppporters of Dems and Dem Values but who have recently been moving Republican.

 Mas Que un Partido

from the NDN website:

These ads highlighted the Democrats desire to engage Hispanics in the political process and is part of a broader effort to bring progressive values - opportunity, responsibility, fair-play and the notion that we're all in this together - to life through the passion and power of the world's most popular sport, soccer.

They've even created tee-shirts and other items tieing together World Football and Dem - Progressive Values under the name DU democratas unidos.

So besides the great news that a beautiful island, full of incredible people, may soon be open to all of us to travel and visit, we are again reminded of who our true friends and allies are in supporting our values and efforts while we crash the gates

(probably worth noting that Simon Rosenberg, the Founder and President of NDN, also wrote the introduction or foreword to Crashing the Gates, as well as hosted a luncheon in NYC for Jerome and Markos where i got to meet both of them, and have all 3 sign my copy of the book. Also, after just reading the posting, i feel i must add that i am not hispanic or latin, my screen name was a nickname given to me by a great friend who died way too early living ilfe to the fullest).



--AZ-Sen: Jon Kyl

--AZ-01: Rick Renzi

--AZ-05: J.D. Hayworth

--CA-04: John Doolittle

--CA-11: Richard Pombo

--CA-50: Brian Bilbray

--CO-04: Marilyn Musgrave

--CO-05: Doug Lamborn

--CO-07: Rick O'Donnell

--CT-04: Christopher Shays

--FL-13: Vernon Buchanan

--FL-16: Joe Negron

--FL-22: Clay Shaw

--ID-01: Bill Sali

--IL-06: Peter Roskam

--IL-10: Mark Kirk

--IL-14: Dennis Hastert

--IN-02: Chris Chocola

--IN-08: John Hostettler

--IA-01: Mike Whalen

--KS-02: Jim Ryun

--KY-03: Anne Northup

--KY-04: Geoff Davis

--MD-Sen: Michael Steele

--MN-01: Gil Gutknecht

--MN-06: Michele Bachmann

--MO-Sen: Jim Talent

--MT-Sen: Conrad Burns

--NV-03: Jon Porter

--NH-02: Charlie Bass

--NJ-07: Mike Ferguson

--NM-01: Heather Wilson

--NY-03: Peter King

--NY-20: John Sweeney

--NY-26: Tom Reynolds

--NY-29: Randy Kuhl

--NC-08: Robin Hayes

--NC-11: Charles Taylor

--OH-01: Steve Chabot

--OH-02: Jean Schmidt

--OH-15: Deborah Pryce

--OH-18: Joy Padgett

--PA-04: Melissa Hart

--PA-07: Curt Weldon

--PA-08: Mike Fitzpatrick

--PA-10: Don Sherwood

--RI-Sen: Lincoln Chafee

--TN-Sen: Bob Corker

--VA-Sen: George Allen

--VA-10: Frank Wolf

--WA-Sen: Mike McGavick

--WA-08: Dave Reichert

WHEN STRUCTURE FAILS, LIBERTY IS ALWAYS IN PERIL: Legal Review of NSA Decision

ACLU, et al v. NSA. Et al         06 cv 10204                 Hon Anna Diggs Taylor

*"WHEN STRUCTURE FAILS, LIBERTY IS ALWAYS IN PERIL" Justice Kennedy*

This decision[1] is virtually a one-hundred percent victory for the plaintiffs.[2]  While President Bush has already dismissed this opinion seeking solace in his hope that the 6th Circuit Court of Appeals will reverse this decision[3], Judge Taylor has written a basic civics lesson within this decision.  She explains to President Bush that the document his administration has ignored in exercising these powers, the US Constitution, is the very same document that creates the Presidency of the United States[4].

Unsurprisingly, this decision is incredibly well-written and well-researched.  The lawyering performed on behalf of the plaintiffs in this matter must be commended, as my first-year law professor, Walt Oberer, taught the most important thing a lawyer can do when arguing his case to the Court is provide the Court with an easy peg to hang their hat on.

 In light of past cases wherein the Executive branch has been able to cite state secrets privilege to carry the day, the plaintiffs in this matter sought no discovery whatsoever, no document production, no interrogatories proposed and no depositions requested.  The attorneys relied solely upon the public statements of the Bush Administration to prove that the NSA wiretapping program violated the:

Separation of Powers Doctrine

Administrative Procedures Act

First Amendment to the US Constitution

Fourth Amendment to the US Constitution

FISA

Title III

And the Court decision found in favor of the Plaintiffs.

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth  Amendments to the United States Constitution, the FISA and Title III.

       

Judgment and Permanent Injunction Order 8-17-06              

The Court found undisputed that since 2002, NSA has intercepted international telephone and internet communications of numerous people and organizations without benefit of warrant or other judicial approval and that President Bush has reauthorized this power over 30 times[5] in the past five years.  The Court further found that the various individual Plaintiffs had been specifically harmed in their practice of law, journalism and scholarship as the illegal wiretapping program had, and continued to, substantially chill and impair their constitutionally protected communications.

From labeling the Presidential power relied upon to being from the twilight zone[6] to referencing the star chamber[7], this decision is peppered with implicit condemnations at an administration that has made a mockery of the United States Constitution, the separation of powers and Fourth Amendment.

*STATE SECRETS PRIVILEGE*

Excellent strategic decisions of the Plaintiffs helped avoid the perils of the state secrets privilege that previously doomed the claim of an individual who challenged extraordinary rendition performed by this administration[8].

The state secrets privilege is an evidentiary rule developed to  prevent the disclosure of information which may be detrimental to     national security... the privilege belongs to the Government and        must be asserted by it.

                                                Slip op @ 3,4.            

This privilege is set into two distinct categories, the espionage claim and the `reasonable danger posed to national security' claim.  If the Government asserts the privilege, then the Court must determine whether the circumstances are appropriate for the claim of privilege.

Where there is a strong showing of necessity, the claim of    privilege should not be lightly accepted, but even the most       compelling necessity cannot overcome the privilege if the        court is ultimately satisfied that military secrets are at stake."  Slip op. @ 5, citing, United States v. Reynolds, 345    U.S. 1 (1953) (Unanimous Court decision by Rehnquist, CJ)

 

The Court took this opportunity to make its first slap at the administrations abuse of its executive authority and privilege,

Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked.  Slip op. @ 10.

Thereafter, the Court rules that this privilege claim falls under 2nd type of State Secrets claim but fails to protect the NSA wiretapping program because the Plaintiffs have not sought any additional discovery but simply rely upon the public statements of this administration to prove the elements of their claims.  

The Court notes:

The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP."  Slip op. @ 14, citing, 12/17/05 Radio Address of President Bush.

Footnote 9: "I authorized the National Security Agency, consistent with U.S. Law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

In fact, Judge Taylor set out that the defendants filed both public affidavits of John Negroponte, Director of National Intelligence, and NSA Major General Richard Quirk, as well as "ex parte and in camera versions of its brief along with other classified information" attempting to further buttress the Government's assertion of the states secrets privilege.   Slip op. @ 11.

After finding that the Government had followed the appropriate procedure to assert the states secret privilege, the Court analyzed whether the `classified information' was at all necessary to defend the claims of the plaintiffs.   The plaintiffs asserted that no secret information was needed to prove their claims, but the claims could be ruled upon solely based on the public disclosures and admissions of this administration.  

Judge Taylor agreed:

the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the" wire tapping program of the NSA. Slip op. @ 14.

 

The Court found that the administration had publicly admitted that:

(1)  the (wire tapping) program exists;

(2)  it operates without warrants;

(3)  it targets communications where one party to the communication is outside the U.S., and the government has a reasonable basis to conclude that one party to the communication is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda, or working in support of Al Qaeda.

As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information... Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions."

Slip op. @ 13.

The Court also found that the Plaintiffs had satisfied the need to show actual harm as well as a causal connection between the harm suffered and the program being challenged:

The Plaintiffs were able to establish that they were individually suffering `real and concrete harm' as they were

`stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney plaintiffs, uphold their oath of providing effective and ethical representations of their clients... Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations.""  Slip op. @ 14, 21.

Again, the Court references the bad faith shown by this Administration:

the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit."  Slip op @ 15.

And so begins Civics 101, from a Federal Judge to a Presidential Administration that has acted as,  and stated that, it operates above and beyond the law.

it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.  The three separate branches of government were developed as a check and balance for one another.  It is within the court's duty to ensure that power is never "condensed into a single branch of government.  We must always be mindful that when the president takes official action, the Court has the authority to determine whether he has acted within the law.  'It remains one of the most vital functions of this Court to police with care the separation of powers.  When structure fails, liberty is always in peril.' Slip op. @ 24 (internal citations omitted) (emphasis added).

            Interestingly, after finding the state secrets privilege inapplicable and that the Plaintiffs did indeed present a case or controversy,  Judge Taylor shows her hand in finding in favor of the Plaintiffs.  Only then does the Court recite its evaluation of the substantive aspect of most of the claims.  The Court follows with historical need for:

1. Congressional oversight of Governmental Electronic Surveillance;

2. the Fourth Amendment; and

3. the Separation of Powers;

 while disabusing this Administration of its self-professed notion that it's inherent powers far exceed those of Congress and the limits placed on the executive office by the Constitution.

HISTORY of ELECTRONC SURVEILLANCE

In 1967, Justice Stewart wrote for the Supreme Court,

`searches conducted without prior approval by a judge or magistrate were per se unreasonable under the fourth amendment." Slip. Op @ 25, citing, Katz v. US, 389 US 347 (1967)(emphasis added).

Reacting to this opinion, Congress, in 1968, enacted Title III of the Omnibus Crime Control Act that required warrants and applications under oath for permission to make electronic interceptions of various communications.  In fact, this statute allowed for post-interception warrants to be issued in certain emergency situations.

In 1976, the Congressional "`Church Committee'  disclosed that every president since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses."  Slip op. @ 26.

In 1978, in response, Congress enacted FISA.

Subsequently, Title III was amended to state that

the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted." Slip Op @ 26.

In fact, for various emergency reasons, FISA authorizes the government to take an extension of time to conduct interception of communications before applying for post-interception authority.

FISA does not bar the administration's NSA program.  It just requires that this conduct eventually pass judicial muster through a warrant process.  In fact, FISA allows these warrant applications to be posed to a secret court in order to safeguard the secrecy of the program for which the warrant is being requested.

            *THE FOURTH AMENDMENT*

As the Civics Lesson continues, the Judge explains, with Revolutionary War perspective, the initial need and desire for the founding members of this great country to pass the Fourth Amendment:

"to assure that Executive abuses of the power to search would not continue in our new nation."  Slip op @ 30

Quoting Justice Powell, in what may well be a direct instruction to President Bush;

The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.  Their duty and responsibility are to enforce the laws, to investigate, and to prosecute.  But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.  The historical judgment, which the fourth amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlooking potential invasions of privacy and protected speech.  Slip op. @ 30, quoting, US v. US District Court, 407 US 297 (1972).

Judge Taylor then hands President Bush' advisers an easy-to-explain, four word definition for the Fourth Amendment:

 

reasonableness in all searches' Slip op. @ 31.

As well as a simple explanation of why the Executive Powers do not exceed the Constitution:

"the wiretapping program... has undisputedly been implemented without regard to FISA and of course the more stringent requirements of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution."  Slip op. At 31

*SEPARATION OF POWERS*

Judge Taylor then has her Civics class move to the text known as the Federalist Papers.

 

the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."  Slip op. At 34 citing Federalist 47, James Madison.

Citing a historically important decision concerning executive power when the Supreme Court ruled that the Constitution did not authorize the President to seize  steel mills, the Court examined Executive Power:

the powers of the President are not fixed, but fluctuate, depending upon their jujnctures with the actions of Congress."  Slip Op. @ 34, quoting, Youngstonw Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).

 

 The Court decision explains the Executive Power in reference to three views:

President acted pursuant to express or implied authorizations:

power at maximum-zenith.

President acted in absence of Congressional authorization:

zone of twilight reliant upon only his own independent powers.

President acts incompatible with express or implied will of Congress:

power at lowest ebb, can only rely on his own Constitutional Powers

minus any Constitutional Powers of Congress over the matter.

Concluding this aspect of the civics class, Judge Taylor holds thatin this case the President has acted, undisputedly, as FISA forbids"[9] and therefore, the President is acting incompatibly with Congressional will, at the lowest end of his powers.

These secret authorization orders must , ... fail.  They violate the Separation of Powers ordained by the very Constitution of which this President is a creature." Slip Op. @ 37.

*AUTHORIZATION FOR USE OF MILITARY FORCE (AUMF)*

The Court then disabuses the Administration of the notion that the so called inherent powers exceed the US Constitution.  

"Although many cases hold that the President's power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements."  Slip op @ 41.

Citing recent Supreme Court precedent regarding enemy combatants, Hamdi v. Rumsfed,[10] the Court recognized the need for defense of our Country, but not at all costs, and certainly not at the cost of the rights and privileges created by the United States Constitution.

it is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely contested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. Slip Op. @ 39, quoting, Justice O'Connor, Hamdi @ 532.

Concluding this aspect of the civics lesson, the Court, perhaps tongue planted firmly in cheek, states[11]

 

`the Constitution of the United Stated must be followed ...  all `inherent powers' must derive from the Constitution."  Slip op. At 39, 40.

            CONCLUSION

This decision is concluded with a quote from Justice Warren:

Implicit in the term "national defense' is the notion of  defending those values and ideas which set this Nation apart... It would indeed be ironic if, in the name of  national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile."  Slip op. @ 43 citing US v. Robel, 389 US 258 (1967)

[1] All page citations are to the Slip Opinion found here: http://www.mied.uscourts.gov/...

[2] The Court did find in favor of the defendants and dismissed one claim of the Plaintiffs concerning their `data-mining' claim. Due to state secrets privilege, nothing more was explained about this claim in the Court decision.

[3] President Bush said Friday he expects his administration will win its appeal of a judicial ruling finding the National Security Agency's warrantless domestic surveillance program unconstitutional. http://www.cnn.com/...

[4] Slip Op. @ 31, 37.

[5] Footnote 1 http://www.whitehouse.gov//news/releases/2005/12/20051219-2.html  "I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as our nation is -- for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

[6] "If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers." Slip Op. @ 34.

[7] "This [First] Amendment, the very first which the American people required to be made to the new Constitution, was adopted, as was the Fourth, with ... the actions of the star chamber in mind."  Slip Op. @ 31.

[8] El-Masri v. Tenet, 2006 WL 1391390 (ED VA 5/12/06). In El Masri, the plaintiff, a German citizen of Lebanese descent, sued the former director of the CIA and others, for their alleged involvement in a program called extraordinary rendition.  The court dismissed the plaintiff's claims, because they could not be fairly litigated without disclosure.

[9] Slip op. @ 36.

[10] 542 U.S. 507 (2004) A US citizen may be held as an enemy combatant, but not without due process of law and not for indefinite detention for purposes of interrogation,

[11] The Court summarizes the Government's position that `pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution itself."  Slip Op @ 40.


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