There has been argument about Libby going directly to jail, do not pass go … or the other options, which were whined over incessantly by the Red. Fitz gave his opinion in a [not so] brief that was 43 pages long — he wanted Scooter in jail. Judge Reggie Walton agreed with him, and that was his ruling today.
The Right will be unhappy with Reggie — they shouldn’t be; he’s a Republican, nominated by their very own Dubby in 2001. Most of the Pubs are insisting on a pardon and that pressure will grow, now that Scooters little vacation from public life is immanent.
Worthy of note, gruff actor and soon-to-be Pub candidate Fred Thompson served on the advisory board of Libby’s legal defense fund in 2006. I’m sure we’ll be hearing his opinion soon, old-boy style.
Jude
Judge Won’t Delay Libby Prison Term
MATT APUZZO, AP
June 14, 2007
WASHINGTON — A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis “Scooter” Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks.
U.S. District Judge Reggie B. Walton’s decision will send Libby’s attorneys rushing to an appeals court to block the sentence and could force President Bush to consider calls from Libby’s supporters to pardon the former aide.
No date was set for Libby to report to prison but it’s expected to be within six to eight weeks. That will be left up to the U.S. Bureau of Prisons, which will also select a facility.
“Unless the Court of Appeals overturns my ruling, he will have to report,” Walton said.
Libby’s wife, Harriet Grant, wiped tears away from her eyes but Libby was stoic as Walton ruled.
Libby, the former chief of staff to Vice President Dick Cheney, was convicted in March of lying to investigators and obstructing Special Prosecutor Patrick Fitzgerald’s inquiry into the 2003 leak of a CIA operative’s identity.
Libby’s supporters have called for President Bush to wipe away Libby’s convictions. Bush publicly has sidestepped pardon questions, saying he wants to let the legal case play out. A delay would give Bush more time to consider the requests.
“Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process,” White House spokeswoman Dana Perino said. “The president feels terribly for Scooter, his wife and their young children, and all that they’re going through.”
Libby thanked federal marshals but did not take questions from reporters as he left the courthouse with his wife and lawyers. Fitzgerald also left without commenting.
Walton never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby’s request, the judge waved it off as “not something I would expect from a first-year in law school.”
He also said he received several “angry, harassing, mean-spirited” letters and phone calls following his sentencing but said they wouldn’t factor into his decision.
Libby is the highest ranking government official ordered to prison since the Iran Contra affair. His monthlong trial offered a rare glimpse into the White House in the early days of the Iraq war.
Trial testimony showed that Cheney was eager to beat back criticism of prewar intelligence. One of the administration’s most outspoken critics in mid-2003 was former Ambassador Joseph Wilson.
Amid a flury of news coverage of that criticism, Bush administration officials leaked to reporters that fact that Wilson’s wife, Valerie Plame, worked as an undercover analyst for CIA. That disclosure in a syndicated newspaper column touched off a leak investigation that brought senior White House officials, including Bush and Cheney, in for questioning.
Libby argued he had a good chance of persuading an appeals court that, when Attorney General John Ashcroft and other senior Justice Department officials recused themselves from the leak investigation, they gave Fitzgerald unconstitutional and unchecked authority.
Walton was skeptical, saying the alternative was to put someone with White House ties in charge of an investigation into the highest levels of the Bush administration.
“If that’s going to be how we have to operate, our system is going to be in serious trouble with the average Joe on the street who thinks the system is unfair already,” Walton said.
Libby’s newly formed appellate team - Lawrence S. Robbins and Mark Stancil - will seek an emergency order delaying the sentence. The U.S. Court of Appeals for the District of Columbia Circuit is not sitting right now, however, and attorneys worried about how fast the request would be heard.
The appeals court has several conservative jurists, but that doesn’t necessarily mean Libby will get a pass. Walton is a Republican judge whom Bush put on the bench in his first term. ++
Associated Press Writer Jennifer Kerr contributed to this story.
“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
June 14th, 2007
The restoration of the Constitution and the defeat of unitary power is the fight of our lives … anything else is just a skirmish, compared to this battle for America’s soul.
Jude
Accused Al Qaeda operative can’t be jailed indefinitely, appeals court rules
In a landmark decision, a federal panel rejects Bush’s ‘enemy combatant’ policy. The Arab immigrant has been in a South Carolina military brig for four years.
Josh Meyer, LA Times
June 12, 07
WASHINGTON — In a setback for the Bush administration, a federal appeals court ruled Monday that an alleged Al Qaeda operative arrested in the United States and detained in military custody for four years cannot be held as an enemy combatant.
The 2-1 ruling by the U.S. 4th Circuit Court of Appeals in Richmond, Va., ordered Ali Saleh Kahlah al-Marri released from a South Carolina military brig’s isolation cell, where he has been held since President Bush declared him an enemy combatant. U.S. authorities have described al-Marri as an associate of Al Qaeda operations chief Khalid Shaikh Mohammed who came to the United States on Sept. 10, 2001, to help a “second wave” of sleeper agents bent on striking America.
Monday’s ruling held that neither Bush’s expanded post-Sept. 11 wartime powers nor the Military Commissions Act passed by Congress last year eliminated al-Marri’s constitutional rights to challenge the government’s allegations against him in a court of law.
“This is a landmark ruling for all individuals in this country, rejecting the administration’s unprecedented assertion that it can treat the entire world, including the United States, as a battlefield and jail people for life without charge and without trial simply because he labels them enemy combatants,” said Jonathan L. Hafetz, litigation director of the Liberty & National Security Project at the New York University School of Law and al-Marri’s lead counsel.
Habeas corpus, which is used to challenge imprisonment and enforce due-process rights, “is what stands between the United States and a police state,” Hafetz said.
However, the decision apparently applies only to al-Marri and stands a good chance of being overturned on appeal.
In her 77-page ruling for the majority, Judge Diana Gribbon Motz said al-Marri may be guilty of serious crimes, but sanctioning the indefinite detention of civilians would have “disastrous consequences for the Constitution — and the country.”
“Put simply,” she wrote, “the Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’ ”
Motz said the government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in terrorism investigations or detain him for a limited time pursuant to the Patriot Act. “But military detention of al-Marri must cease,” she wrote.
In a dissenting opinion, visiting Judge Henry E. Hudson said that “definitive precedent is admittedly sparse” but that the administration does have the right to hold al-Marri as an enemy combatant.
The Justice Department issued a statement saying that it was “disappointed with today’s divided decision” and that it would appeal the ruling to the entire appeals court.
Monday’s ruling does not have a direct effect on the 385 detainees at Guantanamo Bay, Cuba, because it addresses only those held within the United States.
Al-Marri, a citizen of Qatar and Saudi Arabia, is believed to be the only person on U.S. soil held as an enemy combatant. He was first detained in December 2001 at his home in Peoria, Ill., on a material witness warrant, after moving there with his wife and children to study for a master’s degree. He was later indicted in Illinois for credit-card fraud, making false statements to the FBI and other charges. He pleaded not guilty but was designated an enemy combatant before his trial began.
Al-Marri’s lawyers said their client insists he has had nothing to do with Al Qaeda.
Al-Marri, 41, was given the news of the ruling Monday by Andrew J. Savage III, the private attorney in Charleston, S.C ., who has worked most closely with him and is handling the case without charge. “When I told him, he put the phone down, got down and prayed to Allah,” Savage said. “Then he came back on the phone and expressed a lot of gratitude to everyone involved, the judge included.”
Said Steven R. Shapiro, legal director of the American Civil Liberties Union: “It is difficult to imagine a more complete repudiation of the administration’s strategy of treating suspected terrorists as enemy soldiers who can be subject to indefinite detention by the military without charges or trial.”
The Justice Department said Monday that “the president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders.”
The department’s unsigned statement said that al-Marri trained at “Osama bin Laden’s terrorist training camp in Afghanistan” and that in the summer of 2001 he met with Mohammed, the self-described mastermind of the Sept. 11 attacks, to discuss how he could enter the United States and “explore methods of disrupting the U.S. financial system.”
Some U.S. officials and legal experts suggested that a government appeal would have a good chance of succeeding, noting that Motz and Judge Roger Gregory were nominated by President Clinton, while the overall 4th Circuit is considered among the most conservative in the country. If that appeal fails, they said, the administration is likely to take the case to another court with a conservative majority: the U.S. Supreme Court.
A Ruling for Justice
New York Times Editorial
June 12, 2007
For years, President Bush has made the grandiose claim that the Congressional authorization to attack Afghanistan after 9/11 was a declaration of a “war on terror” that gave him the power to decide who the combatants are and throw them into military prisons forever.
Yesterday, in a powerful 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit utterly rejected the president’s claims. The majority made clear how threatening the administration’s policies are to the Constitution and the rule of law — and how far the administration has already gone down that treacherous road.
Mr. Bush, the majority said, does not claim these powers for dire emergencies but “maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the presidency, which he and his successors may exercise as they please.”
The prisoner in this case, a citizen of Qatar named Ali al-Marri, was living in the United States legally when he was arrested and charged with being an Al Qaeda terrorist. In 2003, Mr. Bush declared Mr. Marri an enemy combatant, took him from civilian authorities and threw him into a military brig where he remains today without charges being filed.
The court did not say Mr. Marri was innocent, nor that he must be set free. It said that the law does not give Mr. Bush the power to seize a civilian living in the United States and declare him to be an enemy combatant based on whatever definition he chooses to apply. If Mr. Marri is to be kept in prison, it said, he must be tried and convicted in a civilian court.
The ruling said the Constitution and numerous precedents made it clear that foreigners living legally in this country have the same right to due process as any American citizen. It found no merit in the president’s claim that the Congressional approval of the use of military force in Afghanistan gave him authority to change that or that he has “the inherent authority” to do it on his own. Sanctioning that kind of authority “would have disastrous consequences for the Constitution — and for the country,” the judges said.
The judges said their ruling applied only to people living legally in the United States and not to the prisoners in Guantánamo Bay. But the court’s powerful arguments may be relevant to a large number of those men. Steven Shapiro, legal director of the American Civil Liberties Union, said the ruling would not help those prisoners who were captured on a battlefield and properly imprisoned as combatants. But there are hundreds of prisoners who were not taken on a battlefield but instead were picked up by the military or intelligence agents around the world and classified as combatants because of their association with Al Qaeda. The ruling said that was not an adequate definition of combatant.
This ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law. Congress can do that by repealing the odious Military Commissions Act of 2006, which endorsed Mr. Bush’s twisted system of indefinite detentions, by closing Guantánamo Bay and by allowing the courts to sort out the prisoners — not according to the whims of one president with an obvious disdain for the balance of powers but by the rules of justice that have guided this nation for more than 200 years.
America’s Fragile Republic
Robert Parry
Jun 14 2007
By a two-to-one margin, a federal appeals court has repudiated George W. Bush’s right to snatch a civilian off the streets of America and hold the person indefinitely without trial. But the makeup of the three-judge panel was a fluke, with two Clinton appointees comprising the majority.
The proportion of Republican appointees to Democrats on the full U.S. Court of Appeals in Richmond, Virginia, is the opposite, eight-to-four Republican. So, the Bush administration retains high hopes that the full court will agree to review the case of Ali al-Marri and grant the President the authority he wants.
The case, which tests the limits of Bush’s claims to “plenary” – or unlimited – powers as Commander in Chief, eventually is expected to reach the U.S. Supreme Court where Bush has four of nine justices solidly in his corner – Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
Assuming the roster of the Supreme Court remains the same, the swing vote is expected to be Justice Anthony Kennedy, who is considered a loyal Republican – the author of the December 2000 ruling awarding Bush the White House – but who has objected to some elements of Bush’s expansive presidential authority.
The two-to-one decision in Richmond on June 11 also highlights the schism that is opening in the federal courts. On one side are a relatively small number of Democratic judges, often allied with aging moderate Republicans, and on the other are more extreme conservatives, many with ties to the right-wing Federalist Society agreeing that Bush’s “war on terror” must trump civil liberties.
For at least a while longer, Bush’s faction would appear to have time on its side with the old guard fading away and Bush still in position to pick the successors, although the slim Democratic Senate majority has complicated the process.
On the U.S. Supreme Court, for instance, moderate Republican John Paul Stevens is 87 years old and Democrat Ruth Bader Ginsburg is known have battled health problems. If one of those seats should open and if Bush could push through even a moderately conservative justice or a right-wing senator like, say, Orrin Hatch, the President might have the solid majority that he has long coveted.
That means that if Bush can either persuade Justice Kennedy on the al-Marri case or replace one of the more liberal justices before the case reaches the high court, Bush could achieve a lasting legacy. He would have transformed the old U.S. Republic with its ideals about “unalienable” rights into an autocratic national security state with the President imbued with the power to, in effect, “disappear” people.
Full Court Press
Bush’s chances of prevailing could get a boost, too, if the Richmond appeals court overturns the ruling of the three-judge panel. The two Clinton-appointed judges, Diana Gribbon Motz and Roger L. Gregory, won’t have the numerical edge if the full appeals court agrees to hear the case as is expected.
The Fourth Circuit Court of Appeals, considered one of the most conservative in the country, has eight active judges who were selected by Republican presidents – one Nixon-appointed judge; two Reagan-appointed judges, three judges picked by President George H..W. Bush, and two judges named by George W. Bush. All four Democrats were selected by President Clinton.
Some of the Republican judges, such as J. Harvie Wilkinson, previously have supported presidential authority to hold “war on terror” suspects indefinitely without due process, as in the case of U.S. citizen Yader Esam Hamdi, who was captured in Afghanistan. That pro-Bush ruling, written by Wilkinson, was overturned by the U.S. Supreme Court.
But it’s less clear if the more traditional conservatives on the Richmond appeals court will back the right of the President to detain civilians arrested in the United States as in the al-Marri case.
Ali al-Marri, a Qatar citizen, was arrested on Dec. 12, 2001, in Peoria, Illinois, while living with his family and studying computer science at Bradley University. Though initially charged with credit-card fraud and lying to federal agents, al-Marri was transferred into military custody in 2003 as an alleged “enemy combatant” and placed in the Navy brig in Charleston, South Carolina.
The Bush administration claimed al-Marri was a “sleeper agent” who trained at Osama bin Laden’s camp in Afghanistan and entered the United States in the summer of 2001 with the intent of disrupting the U.S. financial system.
In her ruling, Judge Motz wrote that the U.S. military could not detain al-Marri because there was no evidence that he had ever fought against the United States.
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the President calls them ‘enemy combatants’ would have disastrous consequences for the Constitution – and the country.”
Such a presidential power “would so alter the constitutional foundations of our Republic” that there was no choice but to conclude that the “military detention of al-Marri must cease,” Judge Motz wrote. Judge Gregory concurred in the opinion.
In the dissent, visiting federal judge Henry Hudson, a George W. Bush appointee, argued that Bush could detain al-Marri as an enemy combatant because “he is the type of stealth warrior used by al-Qaeda to perpetrate terrorist acts against the United States.”
Rather than remand al-Marri to civilian custody after Motz’s ruling, the Justice Department said it would continue al-Marri’s military detention while seeking a rehearing by the full appeals court, a move that is likely to be followed by the case going to the Supreme Court.
During his first 16 months in the Charleston brig, al-Marri was denied any contact with his lawyers or family. According to a 2005 lawsuit filed on his behalf, al-Marri also was subjected to harsh treatment, including threats that he could be sent to Egypt or Saudi Arabia where he would likely be tortured, sodomized and forced to watch his wife raped.
Civil libertarians hailed the al-Marri ruling as a significant defeat for Bush’s vision of an imperial presidency. But the fragility of the judicial consensus holding the line against the President’s “plenary” powers signals that the battle to sustain the Founders’ vision of a Republic based on the rule of law and recognizing “certain unalienable rights” is far from over.
Fleeting Glory in Albania
Eugene Robinson, WaPo
Tuesday, June 12, 2007
George W. Bush, Hero of Albania! At least there’s one place in the world where they show the Decider some love.
That was a wonderful reverse-Borat moment Sunday, with the joyous townspeople of Fushe Kruje yelling “Bushie! Bushie!” and Albania’s prime minister gushing over the “greatest and most distinguished guest we have ever had in all times.” The crowd pressed in for autographs, photographs, a presidential peck on the cheek. Years from now, in his dotage, Bushie will feel warm all over when he recalls those magical hours in Albania. How they adored him!
Outside of greater Tirana, however, the president’s stock as an apostle of freedom continues to fall — and rightly so. Even as Albania swooned, the rest of Europe was digesting a blue-ribbon report issued Friday about the abduction, secret detention and abusive interrogation of suspects in Bush’s “war on terror.”
The report was done for the Council of Europe by Swiss legislator Dick Marty, and its opening paragraph is worth quoting at length:
“What was previously just a set of allegations is now proven: large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice. Others have been held in arbitrary detention, without any precise charges leveled against them and without any judicial oversight. . . . Still others have simply disappeared for indefinite periods and have been held in secret prisons, including in member states of the Council of Europe.”
Citing “clear and detailed confirmation” from knowledgeable sources, Marty concluded that Poland and Romania, as long suspected, were two countries that hosted secret CIA prisons where “high value” detainees were held and interrogated.
Polish and Romanian officials have said they are shocked — shocked! — that anyone would accuse them of having anything to do with CIA dungeons and/or the “enhanced” questioning techniques that the report describes as torture. But Marty is a former prosecutor, and he puts together a compelling case.
This, I am convinced, is how future generations will remember George W. Bush: as the president who abandoned our traditional concepts of justice and human rights, choosing instead a program of state-sponsored kidnapping, arbitrary detention and abusive interrogation techniques such as “waterboarding.”
We will remember him for the Iraq war, of course. But I hope and believe we will give at least as much weight to his erosion of our nation’s fundamental values and basic character.
We will remember him as the president who established a prison at Guantanamo Bay, Cuba, complete with kangaroo-court military tribunals in which detainees were not allowed to see the alleged evidence against them. We will remember that long after it was clear that Guantanamo was doing serious harm to our nation’s reputation in the world — on Sunday, Bush’s former secretary of state, Colin Powell, called for the place to be shut down “this afternoon” — Bush stubbornly kept it open.
We will remember Dick Cheney not for accidentally shooting a fellow hunter but for apparently being the loudest and most strident voice inside the administration against honoring the concepts of due process and habeas corpus that define justice in civilized societies. We will remember the negligible regard he holds for the Geneva Conventions.
We will remember Alberto Gonzales not for his hapless stewardship of the Justice Department or the firings of those U.S. attorneys– well, actually, we will remember him for those things — but we’ll also remember that when he was White House counsel he dutifully provided legalistic justification for subjecting prisoners to treatment that international agreements clearly define as torture.
We will remember this whole misguided administration for deciding to wage the fight against terrorism in a manner that not only mocks our nation’s values but also draws new recruits to the anti-American cause. We will remember this White House for unwittingly helping the terrorist cause perpetuate itself.
Marty makes this point in his report. “We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies,” he writes. “However, we believe that the end does not justify the means in this area.” Resorting to “abuse and illegal acts,” he says, “actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror.”
Nineteen months from now, a new president will begin trying to repair some of the damage this administration leaves behind. Bushie, meanwhile, will be back on the ranch, spending his days clearing brush and perhaps daydreaming of his Albanian glory.
“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
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June 14th, 2007