Crashing wave; Curaçao – N.Antilles via lapidim.

Here is my biggest current fear in a legal nutshell.  It’s laid out succinctly by Jonathan Adler of Case Western Reserve Law School:

If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal — as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department’s Office of Legal Counsel — does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama’s nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

It’s all the more disheartening because, having read a number of her cases, I was fairly happy with how she reasoned through the results in many of them.

But we rarely got a glimpse of that Sonia Sotomayor.  Partly, it’s because the questions focused on Ricci, the 2nd amendment and "wise Latinas" by design to obscure and blur the political lines on both sides of the aisle. 

Which is exactly what worries me in terms of the Democrats and the Obama Administration’s legal strategy. Something Digby tapped into as well talking about the pitfalls of bipartisan kumbaaya.

You can win an individual battle, yet cede the larger war.  And I worry we are doing just that, as Adler says.

Liberals should not be afraid to stand up and say they are liberal. Nor should we cower in fear over speaking in unabashedly liberal terms or fighting for the ideals that made us turn toward liberal politics in the first place.

Robyn Blumner made that exact point in a feisty op-ed regarding choice recently. It was an article that made me really stop and think about compromises and courage. (more…)

Fallen via jimpg2 _PEACE.

Some people are ruled by courage and justice, and some are ruled by fear and petty personal ambition.  See if you can tell which is which between Sen. Lindsey Graham and Lt. Col. Darrel Vandeveld.

First, via Spencer, Lt. Col Vandeveld:

…“If someone is acquitted, then, as we do today, we should release him,” Vandeveld says. “I know the president has said he does not want release someone who’s a threat to the American people. As a prosecutor of 20 years, I can tell you that happens every day in the U.S. — the recidivism rate is huge. It’s worse than people want to think about. But it’s worth the risks that one has to take if one believes in democracy and the rule of law. There are two systems already in place [for dealing with dangerous people]: military courts martial under the [Uniformed Code of Military Justice] and Article-3 [federal civilian] courts. There’s no reason to lower our standards to obtain convictions would not obtain otherwise.”

Spencer has much, much more at the Washington Independent on this, including summaries of yesterday’s testimony which will piss off a lot of folks on the civil liberties, rule of law end of things.

Lt. Col. Vandeveld is scheduled to appear before Jerry Nadler’s House Judiciary Subcommittee that covers constitutional and civil liberties issues beginning at 10 am ET. The C-Span schedule doesn’t appear to be covering it, so I’m looking for a livestream from the committee now.

Now, here’s Sen. Lindsey Graham, also a JAG, from the eviscerating habeas MCA discussion days. See if you sense a difference in tone and motivation:

"I’m curious to see what the five new Democrats would think about giving terrorists the ability to sue our troops in federal court and having federal district court judges make wartime decisions," Graham said Wednesday. "I got a feeling a lot of them would agree with me."

One deals in truths, facts and reality, the other makes it up as he goes along. Lovely.

If I can find a livestream for the committee, I’ll link it up here for everyone.

He has grown up at Gitmo.

ACLU had another day in court yesterday in the Jawad case, this time arguing that evidence in the case which was coerced through torture and other impermissible means cannot be used to continue to detain him.

The judge in Jawad’s military commission proceedings previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture. However, the government continues to rely on those same statements in Jawad’s habeas corpus challenge.

"Since his arrest in 2002, Mr. Jawad has been subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally," said Jonathan Hafetz, staff attorney with the ACLU National Security Project. "The statements wrung from Mr. Jawad in Afghanistan and at Guantánamo during more than 50 interrogations do not remotely meet the standard for admissibility in a court of law."

Lest you think this is simply hyperbole, the ACLU has described what happened with Jawad from the moment of his capture forward — and remember he was a young boy at the time that all of this occurred.

The YouTube above is more detail from ACLU, along with this:

Following his arrest for allegedly throwing a grenade at U.S. soldiers, Jawad was taken to an Afghan police station where he was coerced into signing a confession written in Farsi, a language Jawad could not speak, much less read or write. In fact, Jawad was functionally illiterate even in his native language of Pashto.

Once transferred to U.S. custody, Jawad was illegally rendered to Bagram Air Base in Afghanistan, where he was interrogated at least 11 times and subjected to beatings, forced into painful "stress positions," deprived of sleep, forcibly hooded, placed in isolation, pushed down stairs, chained to a wall for prolonged periods and subjected to threats of death. The U.S. later transported Jawad to Guantánamo, where he was subjected to the notorious "frequent flyer" sleep deprivation program as well as the Survival Evasion Resistance Escape (SERE) interrogation methods recently denounced in a Senate Armed Services Committee Report. Eventually, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall….

We’re still holding him at Gitmo. (more…)

Today, the less-heavily-redacted version of the CIA IG report on torture and interrogation techniques during the Bush Administration is due for release.  Unless, of course, there is yet another delay. Why I’d think there might be another attempt at delay is beyond me.  I’ll let Marcy take the Rizzo from here. And hope we see an IG report sometime before I pass from this earth. While we wait, I wanted to note a potential victory of sorts for the rule of law from the still-as-yet-unhelmed by Dawn Johnsen OLC.

Last week, Reuters speculated on potential nominees for the Financial Crisis Inquiry Commission, a sort of successor to the famed Pecora Commission. The planted list of CW-approved possibilities was underwhelming:

A short list of names has emerged for the Financial Crisis Inquiry Commission that includes former Republican presidential candidate Fred Thompson; former Democratic head of the Commodities Futures Trading Commission Brooksley Born; and Alex Pollock, a fellow at the conservative

Last Friday’s news dump included the disturbing rumor that the Obama Administration is considering an executive order for indefinite detention of detainees is US custody.

Considering how opposed I was to this during the Bush years? It should be no shocker that I still think it’s craptastically unconstitutional nincompoopery.

Jefferson Memorial at sunset via Camera Slayer.In case anyone is wondering why I’ve been dogging the Dawn Johnsen OLC nomination for months and months on end? Why restoration of the rule of law and having real leadership in place at OLC rather than a temporary staffing limbo is so important to me?

….self-regulation totally works: At this point, administration officials said, they do not have a way to enforce the commitment, other than by publicizing the performance of health care providers to hold them accountable.

This is the best we can do? Seriously?!?