checks and balances

Former Vice President Dick Cheney will have to give his account -- under oath, in a legal deposition -- of what happened at a Colorado ski resort in June 2006 when a man stepped up to protest the Iraq war and was arrested, a federal district judge ruled Monday.

The protester, Steven Howards, sued five Secret Service agents in Mr. Cheney's security detail after the encounter at the Beaver Creek resort. Mr. Howards's lawyers have argued that Mr. Cheney's version of events is crucial to getting at the truth.

Mr. Cheney's lawyers had responded -- successfully until Monday's ruling by Judge Christine M. Arguello in Denver -- that a deposition was unnecessary. A federal magistrate agreed with Mr. Cheney last April; Judge Arguello's ruling reversed that decision.

Mr. Howards has admitted to approaching Mr. Cheney and saying the administration's policies in Iraq were disgusting, or words to that effect. He walked away unhindered by Secret Service agents, but he was arrested by them about 10 minutes later for what they said was the "assault" on the vice president.

Mr. Howards was detained by the Secret Service and local law enforcement officials, then released. Misdemeanor harassment charges were filed, then dropped by the local district attorney. Several of the agents, in their depositions, have accused one another of unethical and perhaps even illegal conduct in handling the matter.

It's a sad day when you can't tell the vice president to his face what you really think of his administration.

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.

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During one campaign appearance, Obama recalled that his mother had died of cancer and said he saw no difference between doctor-prescribed morphine and marijuana as pain relievers. He told an interviewer in March that it was "entirely appropriate" for a state to legalize the medical use of marijuana "with the same controls as other drugs prescribed by doctors."

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"The president believes that federal resources should not be used to circumvent state laws" and expects his appointees to follow that policy, Schapiro said.

A federal judge ruled Monday that a lawsuit filed by an Islamic charity alleging that it was illegally wiretapped by the National Security Agency may proceed, and issued a stinging rebuke to government lawyers who have repeatedly sought to invoke the state secrets privilege to block litigation.

The case, Al Haramain v. Bush, is unusual in that--unlike the Electronic Frontier Foundation's more publicized suits against the NSA and complicit telecoms--the plaintiffs in this case know that the directors of the Al-Haramain Islamic Foundation were specifically subject to warrantless surveillance, thanks to a government blunder that put a classified memo in the hands of the charity's lawyers. An appellate court ruled last year that the secret document had to be turned over to the government, and so could not be used to establish standing to sue. But in an opinion issued this summer, Judge Vaughn Walker, who has been handling a spate of suits concerning the NSA's super-secret "Stellar Wind" program, decided that the foundation could still seek to show they'd been spied upon using public evidence.

Rodis promptly filed a $250,000 claim against the city, former Police Chief Alex Fagan Sr., and two officers at the scene alleging false arrest, excessive force, and the negligent infliction of emotional stress, among other things. He later offered to settle the suit for $15,000, but the City Attorney's Office refused to accept the deal.

Five years and innumerable legal bills later, the case just keeps getting worse for the city -- even before it lands in front of a jury to determine if indeed the police should compensate Rodis.
"Part of my mind was saying ... 'I'm not going to argue. I'm not going to resist,'" Rodis said of the arrest. "I put my hands behind my back but I'm thinking 'This has got to be a mistake. Somebody here has to have some sense.'"

Rodis was suffering from minor allergy symptoms on Feb. 17, 2003, when he headed to a Walgreens on Ocean Avenue he'd been going to for 20 years. It was located near his Ingleside home and a law office he's had in the neighborhood since 1992.

He picked up some cough syrup, Claritin, toothpaste, and a few other things. The total came to $42 and change, so he tried to pay with a $100 bill.

"I just happened to have it in my wallet," Rodis said.

The drugstore clerk used a counterfeit detection pen to be sure the bill was legit. It was, according to the marking, but the bill was printed in the 1980s before watermarks and magnetic strips were used to help stop counterfeiting.

The young clerk was unfamiliar with the bill's design and called a manager to be sure. He too used a counterfeit pen to confirm that it was real. But the manager told Rodis he was still going to call the police, fearing it was fake. That's when things turned surreal. Two officers showed up and almost immediately placed Rodis in handcuffs before trying to ascertain if he'd actually attempted to defraud Walgreens.

"They made no effort to determine what the situation was ... they just assumed," Rodis said. "When she said 'Put your hands behind your back,' I thought I was in some Twilight Zone episode."

In authorizing an invasion in 2002, Congress did not give President Bush a blank check. It explicitly limited the use of force to two purposes: to "defend the national security of the US from the threat posed by Iraq" and "enforce all relevant UN Security Council resolutions."

Five years after the fall of Saddam Hussein, the government of Iraq no longer poses a threat. Our continuing intervention has been based on the second clause of Congress' grant of war-making power. Coalition troops have been acting under a series of Security Council resolutions authorizing the continuing occupation of Iraq. But this year, Bush allowed the UN mandate to expire on December 31 without requesting a renewal. At precisely one second after midnight, Congress' authorization of the war expired along with this mandate.

Bush is trying to fill the legal vacuum with the new Status of Forces Agreement (SOFA) he signed with the Iraqis. But the president's agreement is unconstitutional, since it lacks the approval of Congress

On Fox News Sunday today, host Chris Wallace asked Vice President Cheney, "if the President, during war, decides to do something to protect the country, is it legal?" "I think as a general proposition, I'd say yes," replied Cheney.

Cheney went on to defend the administration's actions over the past eight years:

CHENEY: There are bound to be debates and arguments from time to time and wrestling back and forth about what kinds of authority is appropriate in any specific circumstances, but I think that what we've done has been totally consistent with what the Constitution provides for.

QUESTION: You have claimed Karl Rove was a driving force behind your prosecution.

SIEGELMAN: We know from documentary evidence and from testimony that Rove was involved in the firing of the US attorneys [at the start of Bush's second term] and he's been identified at the scene of the crime in my case. We know that others worked with Rove to carry out his conspiracies to subvert our system of justice and to abuse the power of his office and to misuse the power of the Department of Justice for political purposes.

QUESTION: Some people believe Rove wanted your political career damaged because of your standing in the Democratic Party.

SIEGELMAN: I had endorsed Al Gore in 2000--the first governor to do so--and it wasn't long after that that they started the investigation. I had made plans after my 2002 re-election--which I ultimately lost because of the bad press generated by these investigations--to hit the primary states. I had been secretary of state for eight years, attorney general for four years, lieutenant governor for four years, and governor for four years--I had all these friends around the country--so I thought I could gin up a campaign not for me but against George W. Bush, against his war, against his economic policies, and against his education policies.

There is no question in my mind that Rove played a key role in what happened to me. From the beginning, the investigation was started by Rove's client, the state attorney general Mark Pryor; then the prosecution was carried out by the wife of Rove's best friend and his former business partner. [They had previously worked as political consultants together in Alabama.] We have a live witness who claims that Bill Canary--Rove's partner--said Rove had taken my case to the Department of Justice. Now it's up to Congress--and the House and the Senate judiciary committees--to bring Rove before the House Judiciary Committee.

QUESTION: Actually, the House Judiciary Committee has already subpoenaed Rove to testify and he has refused to appear.

SIEGELMAN: That's why it's so important for the House and the Senate to hold Rove in contempt of Congress and exercise their inherent authority to enforce that subpoena by sending the Capital police to go get him and bring him in or by pursuing the thing through litigation. But one way or the other, it is critically important that the subpoena be upheld. Otherwise, it sends the message to all his accomplices that they are free to carry out their mischief in the future with impunity because nothing is going to happen to him.

We no longer have a civilian-led government. It is hard for a lifelong Republican and son of a retired Air Force colonel to say this, but the most unnerving legacy of the Bush administration is the encroachment of the Department of Defense into a striking number of aspects of civilian government. Our Constitution is at risk.

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But these initial military takeovers of civilian functions all took place a long distance from home. "We are in a war, after all," Ronald Neumann, a former U.S. ambassador to Afghanistan, told me by way of explaining the military's huge role in that country -- just before the Pentagon seemingly had him removed in 2007 because of his admirable efforts to balance military and civilian needs. (I heard angry accounts of the Pentagon's role in Neumann's "retirement" at the time from knowledgeable diplomats, one of them very senior.) But our military forces, in a bureaucratic sense, soon marched on Washington itself.

As military officers sought to take over the role played by civilian development experts abroad, Pentagon bureaucrats quietly populated the National Security Council and the State Department with their own personnel (some civilians, some consultants, some retired officers, some officers on "detail" from the Pentagon) to ensure that the Defense Department could keep an eye on its rival agencies. Vice President Cheney, himself a former secretary of defense, and his good friend Rumsfeld ensured the success of this seeding effort by some fairly forceful means. At least twice, I saw Cheney staffers show up unannounced at State Department meetings, and I heard other State Department officials grumble about this habit. The Rumsfeld officials could play hardball, sometimes even leaking to the press the results of classified meetings that did not go their way in order to get the decisions reversed. After I got wind of the Pentagon's dislike for the approved interagency anti-drug strategy for Afghanistan, details of the plan quickly wound up in the hands of foreign countries sympathetic to the Pentagon view. I've heard other, similarly troubling stories about leaks of classified information to the press.

Dick Cheney's lawyers are asserting that the vice president alone has the authority to determine which records, if any, from his tenure will be handed over to the National Archives when he leaves office in January.

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"The vice president alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law," according to a court filing by Cheney's office with the U.S. District Court on Dec. 8.

Cheney is being sued by Citizens for Responsibility and Ethics in Washington, a government watchdog group that is trying to ensure that no presidential records are destroyed or handled in a way that makes them unavailable to the public.

Another case of this moron thinking that those in government should operate unchecked.

Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government's terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren't on the list would harm national security since that could alert them to the fact they have been under government scrutiny.

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The court's rebuff (.pdf) of the government's use of the state secrets privilege is highly unusual, as courts are rarely willing to challenge the executive branch on mattes of national security. Experts call the state secrets privilege the "nuclear option," and the Bush administration has used it widely to dismiss cases challenging its warrantless wiretapping program and the CIA's use of secret overseas prisons.

Nice to see checks and balances kick in.

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