Skip to main content

Home/ Socialism and the End of the American Dream/ Group items tagged bad-faith-court-filings

Rss Feed Group items tagged

Filter: All | Bookmarks | Topics Simple Middle
Gary Edwards

Jim Kunstler's 2014 Forecast - Burning Down The House | Zero Hedge - 0 views

www.zerohedge.com/...14-forecast-burning-down-house

Banksters

shared by Gary Edwards on 08 Jan 14 - No Cached
  • Gary Edwards on 08 Jan 14
     
    Incredible must read analysis. Take away: the world is going to go "medevil". It's the only way out of this mess. Since the zero hedge layout is so bad, i'm going to post as much of the article as Diigo will allow: Jim Kunstler's 2014 Forecast - Burning Down The House Submitted by Tyler Durden on 01/06/2014 19:36 -0500 Submitted by James H. Kunstler of Kunstler.com , Many of us in the Long Emergency crowd and like-minded brother-and-sisterhoods remain perplexed by the amazing stasis in our national life, despite the gathering tsunami of forces arrayed to rock our economy, our culture, and our politics. Nothing has yielded to these forces already in motion, so far. Nothing changes, nothing gives, yet. It's like being buried alive in Jell-O. It's embarrassing to appear so out-of-tune with the consensus, but we persevere like good soldiers in a just war. Paper and digital markets levitate, central banks pull out all the stops of their magical reality-tweaking machine to manipulate everything, accounting fraud pervades public and private enterprise, everything is mis-priced, all official statistics are lies of one kind or another, the regulating authorities sit on their hands, lost in raptures of online pornography (or dreams of future employment at Goldman Sachs), the news media sprinkles wishful-thinking propaganda about a mythical "recovery" and the "shale gas miracle" on a credulous public desperate to believe, the routine swindles of medicine get more cruel and blatant each month, a tiny cohort of financial vampire squids suck in all the nominal wealth of society, and everybody else is left whirling down the drain of posterity in a vortex of diminishing returns and scuttled expectations. Life in the USA is like living in a broken-down, cob-jobbed, vermin-infested house that needs to be gutted, disinfected, and rebuilt - with the hope that it might come out of the restoration process retaining the better qualities of our heritage.
Paul Merrell

The Torture Report and the "Glomar Fig Leaf" | Just Security - 0 views

justsecurity.org/...glomar-fig-leaf

war & peace CIA torture targeted-killings Glomar-response bad-faith-court-filings

shared by Paul Merrell on 15 Dec 14 - No Cached
  • Buried in the SSCI’s report is an arresting passage that suggests that the CIA was quietly releasing information about the torture program to journalists while it was contending in court that release of such information to the public would compromise national security. After the April 15, 2005 National Security Principals Committee meeting, the CIA drafted an extensive document describing the CIA’s Detention and Interrogation Program for an anticipated media campaign.  CIA attorneys, discussing aspects of the campaign involving off-the-record disclosures, cautioned against attributing the information to the CIA itself.  One senior attorney stated that the proposed press briefing was “minimally acceptable, but only if not attributed to a CIA official.”  The CIA attorney continued: “This should be attributed to an ‘official knowledgeable’ about the program (or some similar obfuscation), but should not be attributed to a CIA or intelligence official.”
  • Referring to CIA efforts to deny Freedom of Information Act (FOIA) requests for previously acknowledged information, the attorney noted that, “[o]ur Glomar fig leaf is getting pretty thin.”  Another CIA attorney noted that the draft “makes the [legal] declaration I just wrote about the secrecy of the interrogation program a work of fiction.” The reference to the “Glomar fig leaf” related to an argument the CIA was making in ACLU litigation that was pending before Judge Alvin K.  Hellerstein in the Southern District of New York.  In connection with Freedom of Information Act requests we’d filed in October 2003 and June 2004, we were seeking, among other things, three documents we’d learned of from media reports: the Memorandum of Notification (MON) in which President Bush had authorized the CIA to establish black sites overseas, and two memos in which lawyers from the Office of Legal Counsel had concluded that CIA interrogators could lawfully torture prisoners in their custody.  The CIA responded with a “Glomar” response—it argued that the existence or non-existence of the three documents was a properly classified fact. 
  • As the SSCI report makes clear, CIA lawyers didn’t really believe what the agency was saying in its sworn declarations.  They understood that the sworn declarations the agency was filing in federal court were “work[s] of fiction.”  The agency was telling the courts that nothing could be disclosed about its torture program without compromising national security, but at the same time, it was providing quotations and “facts” to the media in order to persuade the public that its activities were lawful, necessary and effective. If all of this sounds familiar, it’s because the CIA is now doing precisely the same thing with respect to the targeted-killing program. To the courts, the CIA says that any disclosure about the program will gravely compromise national security.  To the media, it supplies a continuous stream of cherry-picked facts meant to cast the program in the most favorable light.
  • ...1 more annotation...
  • The SSCI report makes clear that some CIA lawyers were uncomfortable with the chasm between the agency’s representations to the court in the torture FOIA litigation and the agency’s actual conduct.  According to the SSCI, some CIA lawyers “urged that CIA leadership … ‘confront the inconsistency’ between CIA court declarations ‘about how critical it is to keep this information secret’ and the CIA ‘planning to reveal darn near the entire” program.’” Presumably those lawyers were worried about the possibility that a court would sanction the agency’s declarants; perhaps they were also worried about compliance with their own professional obligations. One wonders whether the CIA’s lawyers are worried about the same things today.
Paul Merrell

Revealed: How DOJ Gagged Google over Surveillance of WikiLeaks Volunteer - The Intercept - 0 views

firstlook.org/...appelbaum-google-investigation

surveillance state DoJ Appelbaum-email Wikileaks

shared by Paul Merrell on 21 Jun 15 - No Cached
  • The Obama administration fought a legal battle against Google to secretly obtain the email records of a security researcher and journalist associated with WikiLeaks. Newly unsealed court documents obtained by The Intercept reveal the Justice Department won an order forcing Google to turn over more than one year’s worth of data from the Gmail account of Jacob Appelbaum (pictured above), a developer for the Tor online anonymity project who has worked with WikiLeaks as a volunteer. The order also gagged Google, preventing it from notifying Appelbaum that his records had been provided to the government. The surveillance of Appelbaum’s Gmail account was tied to the Justice Department’s long-running criminal investigation of WikiLeaks, which began in 2010 following the transparency group’s publication of a large cache of U.S. government diplomatic cables. According to the unsealed documents, the Justice Department first sought details from Google about a Gmail account operated by Appelbaum in January 2011, triggering a three-month dispute between the government and the tech giant. Government investigators demanded metadata records from the account showing email addresses of those with whom Appelbaum had corresponded between the period of November 2009 and early 2011; they also wanted to obtain information showing the unique IP addresses of the computers he had used to log in to the account.
  • The Justice Department argued in the case that Appelbaum had “no reasonable expectation of privacy” over his email records under the Fourth Amendment, which protects against unreasonable searches and seizures. Rather than seeking a search warrant that would require it to show probable cause that he had committed a crime, the government instead sought and received an order to obtain the data under a lesser standard, requiring only “reasonable grounds” to believe that the records were “relevant and material” to an ongoing criminal investigation. Google repeatedly attempted to challenge the demand, and wanted to immediately notify Appelbaum that his records were being sought so he could have an opportunity to launch his own legal defense. Attorneys for the tech giant argued in a series of court filings that the government’s case raised “serious First Amendment concerns.” They noted that Appelbaum’s records “may implicate journalistic and academic freedom” because they could “reveal confidential sources or information about WikiLeaks’ purported journalistic or academic activities.” However, the Justice Department asserted that “journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” and refused to concede Appelbaum was in fact a journalist. It claimed it had acted in “good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the … subscriber or anyone else.” Google’s attempts to fight the surveillance gag order angered the government, with the Justice Department stating that the company’s “resistance to providing the records” had “frustrated the government’s ability to efficiently conduct a lawful criminal investigation.”
  • The Justice Department wanted to keep the surveillance secret largely because of an earlier public backlash over its WikiLeaks investigation. In January 2011, Appelbaum and other WikiLeaks volunteers’ – including Icelandic parlimentarian Birgitta Jonsdottir – were notified by Twitter that the Justice Department had obtained data about their accounts. This disclosure generated widepread news coverage and controversy; the government says in the unsealed court records that it “failed to anticipate the degree of  damage that would be caused” by the Twitter disclosure and did not want to “exacerbate this problem” when it went after Appelbaum’s Gmail data. The court documents show the Justice Department said the disclosure of its Twitter data grab “seriously jeopardized the [WikiLeaks] investigation” because it resulted in efforts to “conceal evidence” and put public pressure on other companies to resist similar surveillance orders. It also claimed that officials named in the subpeona ordering Twitter to turn over information were “harassed” after a copy was published by Intercept co-founder Glenn Greenwald at Salon in 2011. (The only specific evidence of the alleged harassment cited by the government is an email that was sent to an employee of the U.S. Attorney’s office that purportedly said: “You guys are fucking nazis trying to controll [sic] the whole fucking world. Well guess what. WE DO NOT FORGIVE. WE DO NOT FORGET. EXPECT US.”)
  • ...4 more annotations...
  • Google accused the government of hyperbole and argued that the backlash over the Twitter order did not justify secrecy related to the Gmail surveillance. “Rather than demonstrating how unsealing the order will harm its well-publicized investigation, the government lists a parade of horribles that have allegedly occurred since it unsealed the Twitter order, yet fails to establish how any of these developments could be further exacerbated by unsealing this order,” wrote Google’s attorneys. “The proverbial toothpaste is out of the tube, and continuing to seal a materially identical order will not change it.” But Google’s attempt to overturn the gag order was denied by magistrate judge Ivan D. Davis in February 2011. The company launched an appeal against that decision, but this too was rebuffed, in March 2011, by District Court judge Thomas Selby Ellis, III.
  • The government agreed to unseal some of the court records on Apr. 1 this year, and they were apparently turned over to Appelbaum on May 14 through a notification sent to his Gmail account. The files were released on condition that they would contain some redactions, which are bizarre and inconsistent, in some cases censoring the name of “WikiLeaks” from cited public news reports. Not all of the documents in the case – such as the original surveillance orders contested by Google – were released as part of the latest disclosure. Some contain “specific and sensitive details of the investigation” and “remain properly sealed while the grand jury investigation continues,” according to the court records from April this year. Appelbaum, an American citizen who is based in Berlin, called the case “a travesty that continues at a slow pace” and said he felt it was important to highlight “the absolute madness in these documents.”
  • He told The Intercept: “After five years, receiving such legal documents is neither a shock nor a needed confirmation. … Will we ever see the full documents about our respective cases? Will we even learn the names of those signing so-called legal orders against us in secret sealed documents? Certainly not in a timely manner and certainly not in a transparent, just manner.” The 32-year-old, who has recently collaborated with Intercept co-founder Laura Poitras to report revelations about National Security Agency surveillance for German news magazine Der Spiegel, said he plans to remain in Germany “in exile, rather than returning to the U.S. to experience more harassment of a less than legal kind.”
  • “My presence in Berlin ensures that the cost of physically harassing me or politically harassing me is much higher than when I last lived on U.S. soil,” Appelbaum said. “This allows me to work as a journalist freely from daily U.S. government interference. It also ensures that any further attempts to continue this will be forced into the open through [a Mutal Legal Assistance Treaty] and other international processes. The German goverment is less likely to allow the FBI to behave in Germany as they do on U.S. soil.” The Justice Department’s WikiLeaks investigaton is headed by prosecutors in the Eastern District of Virginia. Since 2010, the secretive probe has seen activists affiliated with WikiLeaks compelled to appear before a grand jury and the FBI attempting to infiltrate the group with an informant. Earlier this year, it was revealed that the government had obtained the contents of three core WikiLeaks staffers’ Gmail accounts as part of the investigation.
Paul Merrell

Second judge says Clinton email setup may have been in 'bad faith' | Reuters - 0 views

www.reuters.com/...election-clinton-idUSKCN0WV2EI

Auction 2016 Hillary-emails FOIA litigation bad-faith

shared by Paul Merrell on 31 Mar 16 - No Cached
  • A second federal judge has taken the rare step of allowing a group suing for records from Hillary Clinton's time as U.S. secretary of state to seek sworn testimony from officials, saying there was "evidence of government wrong-doing and bad faith."The language in Judge Royce Lamberth's order undercut the Democratic presidential contender's assertion she was allowed to set up a private email server in her home for her work as the country's top diplomat and that the arrangement was not particularly unusual.He described Clinton's email arrangement as "extraordinary" in his order filed on Tuesday in federal district court in Washington.Referring to the State Department, Clinton and Clinton's aides, he said there had been "constantly shifting admissions by the Government and the former government officials."Spokesmen for Clinton did not immediately respond to a request for comment.
  • The case is a civil matter, but the order adds to the legal uncertainty that has overshadowed Clinton's campaign to be the Democratic nominee in the Nov. 8 presidential election. The FBI is also conducting a criminal inquiry into the arrangement after it emerged that classified government secrets ended up in Clinton's unsecured email account. Clinton has said she does not think she will be charged with a crime. Lamberth's order granted the request by Judicial Watch, a conservative watchdog group suing the department under open records laws, to gather evidence, including sworn testimony. The group has filed several lawsuits, including one seeking records about the 2012 attack in Benghazi, Libya, that killed U.S. Ambassador Christopher Stevens and three other Americans."Where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA (freedom-of-information) cases," Lamberth noted in his order.The government is normally given the benefit of the doubt that it properly searched and produced records.
  • Since the email arrangement came to public knowledge a year ago, the State Department has found itself defending Clinton in scores of lawsuits from groups, individuals and news outlets who say they were wrongly denied access to Clinton's federal records. Clinton left the department in 2013, but did not return her email records to the government until nearly two years later. Last month, Judge Emmet Sullivan, who is overseeing a separate Judicial Watch lawsuit over other Clinton-related records, allowed a similar motion for discovery.
Gary Edwards

A First Look at the Book "The Liberty Amendments", by Mark Levin - Tea Party Command Ce... - 0 views

teapartyorg.ning.com/...show

Liberty-Amendments

shared by Gary Edwards on 15 Aug 13 - No Cached
  • Gary Edwards on 15 Aug 13
     
    Excellent youtube interview! "Mark Levin has just published his much-anticipated book The Liberty Amendments: Restoring the American Republic. Three of his eleven proposed Constitutional amendments appear below, and a Sean Hannity interview of Levin appears at the bottom of this post. Levin's book is centered around the Constitution's Article V (aka "Article 5″). That article specifies two methods for amending the Constitution. Just briefly - In the first method of creating amendments, Congress proposes and the States dispose. In the second method of creating amendments, the States propose and the States dispose. The second method has never been used successfully, although there have been many attempts.  It is that second method that the Founders provided as a remedy for an overreaching federal government. In the second method, neither Congress, nor the President, nor the Supreme Court have any voting or veto authority whatsoever.  The states are in full control. Period. It is, by design, the ultimate override for an over-spending, over-taxing, over-regulating, and increasingly dictatorial and lawless federal government. Clearly, its time has come. In that second method, Congress has at most a mere ministerial role.  Of course Congress is very protective of its power, and could, through delay and inaction, attempt to convert their mere ministerial role into a de facto veto power, halting any attempt for a state-driven amendment action. Apparently Congress has done exactly that many times, acting in bad faith and contrary to the Framers' spirit and intent for Article V which is clearly expressed in the Federalist Papers. Legal scholars have been trying to find a way around the federal government's intransigence, so far with little success. Now more than ever, it is time for We the People to bring the power of Article V to the center ring of American politics. That starts with awareness, and Levin's book will br
Paul Merrell

DOJ's Motion to Dismiss in Smith v. Obama, the case challenging the legality of the war... - 0 views

www.justsecurity.org/...-challenging-legality-war-isil

war & peace Smith_v._Obama war-powers-resolution Iraq Syria litigation

shared by Paul Merrell on 15 Jul 16 - No Cached
  • As I noted in an earlier post, Nathan Smith, a U.S. Army captain deployed to Kuwait as part of the campaign against ISIL, Operation Inherent Resolve, has sued the President, seeking a declaration that Congress has not authorized the hostilities in Iraq and Syria and that therefore the War Powers Resolution requires the President to remove U.S. forces from hostilities in those nations. On Tuesday, the Department of Justice filed a motion to dismiss the case. Its brief in support of the motion includes one argument that I think is correct (albeit not for all the reasons the government offers) — namely, that Smith lacks standing to sue. That ought to be sufficient to have the case dismissed. The brief also includes an argument on the merits (albeit not designated as such) that is very interesting and potentially important — an account of how Congress has allegedly authorized Inherent Resolve in three ways: (i) in the 2001 AUMF; (ii) in the 2002 AUMF; and (iii) in current appropriations statutes. The heart of the brief, however, is devoted to a third argument — that Judge Koller-Kotelly must dismiss the case on the basis of the political question doctrine — that is not only wrong, but that simply ignores the Supreme Court’s recent (and repeated) repudiation of that very argument.
  • On page 39 of its 45-page brief, the government finally gets around to the reason why the court should dismiss the complaint: Smith lacks standing. Importantly, Smith’s theory of standing is not that he — an Army captain deployed to perform intelligence services in Kuwait — is more likely to be injured or killed by virtue of the President’s decision to deploy troops into hostilities in Iraq and Syria. It is, instead, that the President’s alleged failure to comply with the War Powers Act results in Captain Smith’s own violation of his officer’s oath to “support and defend” the Constitution “against all enemies, foreign and domestic,” and to “bear true faith and allegiance” to the Constitution.
  • The government’s standing argument begins (p. 35) by suggesting that “[p]laintiff’s claim that he is being forced to betray his oath is insufficient to establish standing because the violation of an oath, by itself, is not an injury in fact.” The cases the government cites for that proposition, however, do not say that a forced oath violation would not be an injury in fact — and that’s not a question the judge needs to resolve. What the cases establish, instead, is the point the government finally argues at page 39 — namely, that a government officer does not violate his oath by complying with superiors’ orders, even if it turns out that the law prohibits the military operation in which those orders are issued. Indeed, Smith would not violate his oath of office even if his superiors’ orders themselves were unauthorized, or if the intelligence activities he is ordered to performed were unauthorized. But he does not allege even those things (as I discuss below, he does not, for instance, alleged that he is being ordered to do anything unlawful). Instead, he merely argues that because President Obama should have withdrawn troops from Syria and Iraq 60 days after their deployment, Smith himself is violating his oath to “bear true faith and allegiance to the Constitution.” This is a non sequitur: Even if Smith is right that the continuation of Operation Inherent Resolve is unlawful, that would not mean that he is acting in violation of his oath. (Much more on this in my earlier post.) And that simple fact is reason enough for Judge Koller-Kotelly to dismiss the case.
  • ...8 more annotations...
  • One of Smith’s counsel, Professor Bruce Ackerman, argues that this reason for rejecting the oath-based theory of standing ignores the Supreme Court’s 1804 decision in Little v. Barreme. Little, however, is not on point. In that case, Navy Captain Little was sued by the owners of a Danish ship for damages caused when Little seized that neutral ship. The Court held that Little could be liable, notwithstanding the fact that he was following orders, because the capture violated a implicit statutory prohibition on the military’s seizure of ships sailing from France to the United States. In this case, however, Captain Smith has not argued — nor could he — that he has been ordered to do anything unlawful (in violation of a statute), let alone that he has been ordered to do something that would subject him to possible liability for damages. He is, instead, arguing that President Obama violated a statute. That is not enough to establish Smith’s standing to sue.
  • The government’s main argument, to which it devotes far too many pages, is that the judge must dismiss the case because it raises a “political question” that courts cannot answer. This is flatly wrong — and it ignores several controlling precedents, including the Supreme Court’s recent 8-1 rejection of virtually the same government argument in Zivotofsky v. Clinton.
  • The most interesting thing about the government’s brief — and by far the most important aspect of it, for public purposes apart from the lawsuit itself — is that, in the section ostensibly arguing that the case is nonjusticiable (see pp. 25-30, and also pp. 4-14), DOJ actually offers the Executive branch’s most detailed defense yet about why Operation Inherent Resolve is congressionally authorized. As some of us predicted, the government relies on three arguable authorizations, any one of which would be sufficient to defeat Smith’s WPR claim if the courts were to reach the merits. In this post I’m not going to assess the merits of the three arguments. For now, my purpose is only to describe them, and to raise one issue with respect to the third. i. First, the government argues that the 2001 AUMF authorizes the operation against ISIL.
  • Second, the government argues that the 2002 AUMF also authorizes Operation Inherent Resolve, just as it authorized operations in Iraq against AQI (which became ISIL) from 2003 to 2011, after the Hussain regime fell.
  • Finally, and most interestingly (in part because the government has not previously made this argument), DOJ argues that a recent “unbroken stream” of appropriations statutes not only confirm the authorities allegedly conferred by the 2001 and 2002 AUMFs, but also offer their own, independent congressional authorization.
  • Two things are fairly clear from this: The members of Congress approve of Operation Inherent Resolve — indeed, there’s virtually no opposition. And Congress has (most likely) appropriated funds to pay for it. The operative question, however, is whether Congress’s appropriations also serve as an authorization that would supersede the requirement of WPR section 5(b). The government brief alludes to one important argument that the plaintiff will undoubtedly raise: Section 8(a)(1) of the WPR provides that, for purposes of tolling the 60-day clock of section 5(b), “[a]uthority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred (1) from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” Obviously, the 2016 Act does not satisfy that requirement. Is that fatal to the appropriations-as-authorization argument?
  • As the Office of Legal Counsel 50 U.S.C. 1542 and 1543). These provisions might be read simply to convey that the executive must continue to comply with the consultation and reporting requirements of WPR sections 3 and 4, even after the 2016 Act authorizes the introduction of troops into hostilities in Iraq and Syria. Or they might alternatively be construed to also specify that the Act is not providing the authority that section 5(b) of the WPR calls for.
  • Not surprisingly, DOJ argues for the former view (pp. 27-28 of the brief): “[I]n the few provisions in which Congress did reference the War Powers Resolution, to clarify that no funds made available for Operation Inherent Resolve are to be used ‘in contravention’ of the Resolution, Congress signaled its agreement that the President’s counter-ISIL military actions were authorized by simultaneously funding Operation Inherent Resolve. If Congress believed that the United States had been conducting airstrikes and other counter-ISIL military activities ‘in contravention of the War Powers Resolution,’ it would have made no sense for Congress to use the ‘in contravention’ proviso in the same laws that make funds available for the express purpose of continuing those military activities.” That’s not a bad argument, at least at first glance; but it’s not a slam-dunk, either, in part because appropriations provisions do not necessarily establish authorizations. It’ll be interesting to see how Captain Smith’s lawyers respond to this particular aspect of the merits argument. I doubt Judge Koller-Kotelly will reach it, however, because she is likely to dismiss the case for want of standing.
  • Paul Merrell on 15 Jul 16
     
    I've read the brief. I don't think the implied partial repeal of the War Powers Resolution argument should fly. The relevant provision establishes a rule of interpretation of later statutes and the appropriations bills neither reject the rule of interpretation nor specifically provide authorization for use of military force. They just authorize funding. On the standing issue, I think the DoJ position is correct; the oath of office applies only to senior officers who make the decision to initiate a war. But DoJ may have opened the door to a more compelling standing argument by arguing that the war does not constitute a war crime, a crime against peace, or a crime against humanity under international law. DoJ did not need to make that argument because Smith had not alleged in his complaint that he was being ordered to commit such crimes, but by doing so DoJ waives any argument that such issues are beyond the scope of Smith's standing and the evidence that the Iraq and Syrian wars are illegal under international law is, to say the least, strong.
1 - 6 of 6
Showing 20▼ items per page