More waiting...

Justice Department, Attorneys for Defunct Charity Must Further Explain Positions

A federal judge yesterday [today - the article is ppst-dated June 4] declined to penalize Justice Department lawyers for flouting his orders in a sensitive electronic surveillance case where the Obama administration sided with its predecessors to the alarm of civil liberties groups.

But U.S. District Judge Vaughn Walker did not give the government what it wanted, either. The San Francisco-based judge batted away fresh Justice Department attempts to appeal his rulings, which have been critical of the Obama approach to protecting state secrets.

Instead, the judge directed attorneys for the administration and for a now-defunct Oregon charity to prepare court filings this summer about the legality of the government's warrantless eavesdropping program and the scope of the executive branch's authority....

Jon Eisenberg, who represents the defunct charity's lawyers, said the Justice Department is now in a position of spelling out its view of executive power, which could conflict with Obama's rhetoric on the campaign trail.

Eisenberg said the judge put off for a later date the charity's request that the government pay its legal fees.

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/03/AR2009060303590.html

Judge Walker's Minute Order:

The Court heard argument from counsel.

Plaintiff shall file a motion for summary judgment.

Hearing is set for 9/1/09 at 10:00 am.

http://www.eff.org/files/filenode/att/alharamainminuteorder6309.pdf

On January 22, Obama issued the executive order - "Ensuring Lawful Interrogations." If photo evidence of "unlawful" interrogations exists from before that date, this FOIA amendment covers it.

It's HR 2346. When you call, you should also specify that it's the "Detainee Photographic Records Protection Act of 2009" that you object to.

http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700

Don't let it be confused with the "Open FOIA Act of 2009," which was introduced by Leahy and Cornyn and is a pro-transparency.

http://leahy.senate.gov/press/200903/031709c.html and http://www.aclu.org/natsec/foia/39068prs20090318.html

I meant to mention that the Open FOIA Act is also in the appropriations bill.

I hope that means they're running into the right kind of heat.

I agree that the FDL page should be updated - it would be easy for staffers to misunderstand, since there are 2 FOIA amendments in the supplemental appropriations bill and one of them is positive (Open FOIA Act).

It should be specified that it's the Detainee Photographic Records Protection Act of 2009 that should be removed from the bill (or voted against if it remains).

That's an excellent idea. Thanks!

Going back through the congressional record...

The original FOIA bills are here:

Detainee Photographic Records Protection Act of 2009 (Lieberman-Graham): http://thomas.loc.gov/cgi-bin/query/z?c111:S.1100:

Open FOIA Act of 2009 (Leahy-Cornyn): http://thomas.loc.gov/cgi-bin/query/z?c111:S.612:

The Detainee Photographic Records Protection Act was submitted as an amendment to the supplemental appropriations bill on May 20. On May 21 (the day the House passed the appropriations bill) the Detainee Photo amendment was modified to include the Open FOIA Act:

Amendment SA 1157 as modified agreed to in Senate by Unanimous Consent. (text as modified: CR S5799) See: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SP01157:

This looks like a case of "you'll get yours, but only if we get ours."

Not this: This looks like a case of "you'll get yours, but only if we get ours." [quoting myself above]

But this: Obama is protecting the troops and he's keeping his promise of a new era of transparency!

but I would also point out that Obama has as yet made no effort that I'm aware of [and this is literally the cue for someone else to present the effort that I am not aware of] to implement preventative detention.

The NY Times article says the "draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system..." So, it may include the preventive detention system.

Anyway, I have a lot of questions about this proposal. Are these particular detainees in a new category? Or has Obama decided to include guilty plea/execution as an option along with detention-for-life for category 5 detainees? And why bother with this new option at all if he can detain someone forever without a real trial? Disclosure of detainee treatment and war crimes wouldn't be an issue. Wouldn't the effects of the martyrdom of these detainees be far more dangerous to the "nearly 200,000 Americans who are serving in harm's way" than hiding them away forever (or releasing 44 "not particularly sensational" photos, for that matter)? Is this meant to make preventive detention look good?

The NY Times article is all about sowing doubt to head off investigations and prosecutions for torture. Reading today's post reminded me of something I ran across the other day and shows how desperate they're getting:

On May 19, Senator Cornyn introduced an amendment to the supplemental appropriations bill (SA 1139, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SP01139:). It was ruled non-germane and rejected.

AMENDMENT PURPOSE:

To express the sense of the Senate that the interrogators, attorneys, and lawmakers who tried in good faith to protect the United States and abide by the law should not be prosecuted or otherwise sanctioned.

Patrick Leahy had this to say (page 5799, http://thomas.loc.gov/cgi-bin/query/R?r111:FLD001:S05799):

Mr. LEAHY. I was encouraged to hear Senator Cornyn call for ``an end to the poisonous environment that has overtaken the debate about detention and interrogation policy in the aftermath of September 11th, 2001.'' I agree and that is why I proposed taking the matter out of partisanship and away from political institutions. That is not what the amendment does, however. First, Senator Cornyn styled this as a sense of the Senate making overly broad findings, now he has stripped those findings from this amendment, and is doing something even more nonsensical, trying to prohibit the use of funds for something that funds are not even provided for in the emergency supplemental....

Yes, yes and yes.