And understand this: If American workers are being denied their right to organize and collectively bargain when I’m in the White House, I will put on a comfortable pair of shoes myself, I’ll will walk on that picket line with you as President of the United States of America. Because workers deserve to know that somebody is standing in their corner.

But, of course, now that Mr. Obama is safely ensconced in Washington DC at the oh so elite address on Pennsylvania Avenue, neither he nor his shoes are anywhere to be found when when workers and “their right to organize and collectively bargain” are under not just attack, but siege, in Wisconsin, Ohio, and other locales.

Today, however, we see what real Democratic leadership in Washington DC looks like when the rights of their citizens and constituents are being trampled on. District of Columbia Mayor Mayor Vincent Gray and other DC Council members found their shoes, took to the street to protest the wrongs occasioned upon the District and its women by the budget compromise that Mr. Obama applauded and congratulated himself over late Friday night. Mayor Gray and friends led by example:

Updated, 6:22 p.m.: Mayor Vincent Gray, D.C. Council Chairman Kwame Brown (D) and council members Yvette M. Alexander (D-Ward 7), Tommy Wells (D-Ward 6), Muriel Bowser (D-Ward 4) and Michael A. Brown (I-At Large) have been arrested by U.S. Capitol Police officers.

Also arrested was Sekou Biddle (D), who is filling Brown’s former at-large council seat on an interim basis.

More than 200 protesters gathered, including local officials and activists. Police let them sit in the street for 30 minutes, then began arresting them. Protesters chanted, “No justice, no peace.”

Mayor Gray and council members Brown, Alexander, Wells, Bowser and Brown not only found their shoes and their voice to stand up for the people they represent, they were willing to put their physical liberty on the line to do so. Gray et. al should be congratulated for this principled stand.

There is a lesson to be learned here by other inhabitants of our nation’s capitol.

The Americans were using some of the most sophisticated tools in the history of war, technological marvels of surveillance and intelligence gathering that allowed them to see into once-inaccessible corners of the battlefield. But the high-tech wizardry would fail in its most elemental purpose: to tell the difference between friend and foe.

This is the story of that episode. It is based on hundreds of pages of previously unreleased military documents, including transcripts of cockpit and radio conversations obtained through the Freedom of Information Act, the results of two Pentagon investigations and interviews with the officers involved as well as Afghans who were on the ground that day.

Before you go any further, go read Cloud’s full article. Seriously, do it now, because the details of the story – of just this one singular drone strike – are too many and Cloud lays them out to well for me to pick, choose and substitute.

Suffice it to say, by the most conservative casualty report, by the US military naturally, there were at least 16 dead and 12 critically wounded. For which General Stanley McChrystal gave a verbal apology and the oh so benevolent United States government paid blood money stipends of $2,900 for the dismembered and disfigured survivors and $4,800 for the dead. At $76,800, the combined lives of 16 innocent dead citizens, blown to bits in their own country, is about the cost of one of the Hellfire missiles fired by a Predator drone. The cold and celebratory technician soldiers at the drone pilot center in Nevada, and video review center in Florida, played their war games on video monitors that are worth more than the United States assigns as the value of a developed human life in Afghanistan.

So much of the angst (though certainly not all) from the legal liberal left, whether here at Emptywheel, from our friend Glenn Greenwald, or others, centers on promises and inferences that Barack Obama made to get elected and how he has cravenly turned his back on them. And rightly so, because his track record on the rule of law and civil liberties has been both despicable and deplorable. But accelerated war in Afghanistan and increased use of remote killer drones was one area where he was honest when campaigning for office. He said that was what he was in favor of, how he would do it, and by god that is one promise he has made good on.

But there should have been more circumspection of Mr. Obama’s position then, and there certainly should be now. The use of drones and remote decision making in war, when applied to small and isolated battlefield considerations such as were present in the instance documented by David Cloud is too cold and detached. As a full fledged policy, it is imperial, brutish and cowardly. The root truth is it is, to mish mash several legal terms of art together, extrajudicial murder with reckless and depraved indifference.

Consider, if you will, the words and acts of the team, and various members in different detached locales, that collaborated to perpetrate this atrocity. Individually, it is hard to place the real weight of blame on any of them; rather the blame lies with the nature of the government, and its leaders, that put them in the position where this kind of hell can, and all too commonly will, occur. This is not the technological advancement of an enlightened society, it is the slipping decay into national depravity. Writ large on a global scale.

Just ponder some of the direct words and thoughts uttered by the individuals in this one case:

“Oh, sweet target!” – This was uttered when there was nothing more than a couple of vehicles with citizens in it.

“I really doubt that children call. Man, I really … hate that,” – the excited utterance of contemptuous denial when one of the team identified the likely presence of children in one or more of the vehicles.

“The weapons we’ve identified and the demographics of the individuals plus the ICOM.” – When there had been NO identification whatsoever of even one weapon, much less multiple/plural weapons and there was NOTHING whatsoever to tie their nebulous “ICOM” chatter to these innocent Afghanistan citizens lawfully going about their business. None. Nada. Zero. Zilch.

When you have a remote and lethal military hammer like the US government possesses, human nails are too easy to find and too easy to pound. When you leave your hammer on permanent war status – in three different wars no less – a lot is going to get nailed. As so many have said, this is not making us safer, it is fueling that which we are so terrified of and lashing out at so ferociously. It is one of the dumbest, most asinine and most craven vicious circles in the history of man and we are being led by a man, again remote and detached, aloof in the White House who is eerily proud of this “strategy”.

It is hard to see how any enlightened discussion would not lend the conclusion that this is criminally reckless behavior under both domestic and international law. There are skilled advocates more than capable of producing legal sophistry to the contrary and, if hired and tasked with doing so, I could too. That is what lawyers do. To be clear, however, I would have no problem defending any individual in the scenario David Cloud so remarkably, and fairly, portrays. What I find indefensible is the strategy and policy of the political leadership in the United States that propagates the killing and the ever more relentless necessity for more of the same. The architects of the vicious circle and the man who has now expanded it to the extrajudicial execution of American citizens.

Today, David Cloud portrays the vignette of the cold, detached remote killing in the Afghanistan countryside. Tomorrow it will be open ground in the vicinity of Nogales, Ciudad Juarez, Tijuana or Key West. Hammers like this, once set in motion and cravenly unrestrained by the men in American political leadership and White House, always find more nails. Stay tuned, drone life and remote enforcement is coming to a city and town near you. Sooner than you think.

General Electric, the nation’s largest corporation, had a very good year in 2010.

The company reported worldwide profits of $14.2 billion, and said $5.1 billion of the total came from its operations in the United States.

Its American tax bill? None. In fact, G.E. claimed a tax benefit of $3.2 billion.

That may be hard to fathom for the millions of American business owners and households now preparing their own returns, but low taxes are nothing new for G.E. The company has been cutting the percentage of its American profits paid to the Internal Revenue Service for years, resulting in a far lower rate than at most multinational companies.

Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore. G.E.’s giant tax department, led by a bespectacled, bow-tied former Treasury official named John Samuels, is often referred to as the world’s best tax law firm. Indeed, the company’s slogan “Imagination at Work” fits this department well. The team includes former officials not just from the Treasury, but also from the I.R.S. and virtually all the tax-writing committees in Congress.

Read the whole article and weep for your and your children’s future. And then take a moment to consider that a competent political class, that was honest about their representation of their constituents and oath to office, would have moved the country away from this reverse Robin Hood dystopia instead of moving ever further down the black hole of elite and corporate greed, robber barons and neo-feudalism.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite correct.

It was bad enough for the Obama Administration, headed by the supposed and so called “Constitutional scholar” Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects’ Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

It is not as if this is some kind of unexplored area with no legal precedent; there is clear precedent on the nature of Miranda rights. In Dickerson v. United States 530 U.S. 428 (2000), the Supreme Court left no mistake as to the nature of Miranda:

But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 517—521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.
….
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.

Furthermore, the “public safety exception” the administration disingenuously bases their new Miranda policy on, is limited and does not support their expansive power grab. The public safety exception, first announced by the Court in Quarles v. New York, applies only where there is an imminent and immediate “great danger to public safety” and the officer who questions the suspect reasonably believes the information sought is necessary to protect the immediate public safety and the questions are limited to only those necessary to obtain the information to mitigate such threat. That is NOT what the Obama/Holder DOJ is contemplating or restricting their policy to and, thus, their policy is simply unconstitutional and inappropriate.

Let us not forget, this attempt by the administration is not aimed at terrorists and enemy combatants on foreign soil, it is aimed squarely at individuals arrested on domestic soil under the regular Article III criminal system. The law is quite established that the reading of the Miranda warning does not confer rights upon the arrestee, the rights are inherent and flow from the Constitution.

I am sure others can, and will, disagree (see for instance the bleatings of John Yoo), the principle is really quite simple: Miranda is a Constitutional based rule, and confirmed by Supreme Court precedent, and it cannot be amended or overruled by act of Congress. And it sure as heck cannot be overruled or amended by administrative fiat via a FBI memorandum.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme.

But the determination to prosecute Julian Assange is not just a destructive and myopic scheme to effect prior restraint in a digital world, it is laughable from the point of legal foundation of criminal prosecution of Assange. That, however, seems to be no deterrent to the US and the Obama/Holder DOJ. ABC News reported last Friday an US indictment against Assange may be imminent and his lawyers were expecting it, and CBS News confirms with more detail today:

“We have heard from the Swedish authorities there has been a secretly empaneled grand jury in Alexandria…just over the river from Washington DC, next to the Pentagon,” Stephens said. “They are currently investigating this, and indeed the Swedes we understand have said that if he comes to Sweden, they will defer their interest in him to the Americans. Now that shows some level of collusion and embarrassment, so it does seem to me what we have here is nothing more than holding charges…so ultimately they can get their mitts on him.”

Last week, U.S. Attorney General Eric Holder said, “We have a very serious criminal investigation that’s underway, and we’re looking at all of the things that we can do to try to stem the flow of this information.”

Exactly what laws would the DOJ prosecute Assange under? There are two options that appear to have gained traction, the first being the Espionage Act, which is codified in US statutory criminal law in Title 18, Chapter 37, i.e. 18 USC 792 et seq. There are really only two provisions here that could likely be applied to Assange/Wiki, 18 USC 793 “Gathering, transmitting or losing defense information” and 18 USC 798 “Disclosure of classified information”. A review of both statutes yields, at first blush, language that could encompass the conduct of Assange and WikiLeaks.

The infirmity of both provisions becomes apparent upon closer inspection. 18 USC contains several stated active prohibitions, however “publication” is certainly not one of them. There is solid historical authority that such omission of “publication” as a prohibited act was intentional (one would assume in light of the First Amendment). As Jennifer Elsea states in a wonderful discussion in a recent official Congressional Research Service Report:

Moreover, the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction.

Exactly. And the last bit on “extraterritorial jurisdiction” is not to be overlooked in the discussion either (although it mostly has been to date). Neither Assange nor WikiLeaks committed any overt act on US soil, within its territorial bulge, nor in or on a US controlled facility overseas. Assange is neither an US citizen or permissive resident, nor does his conduct seem to fall within the parameters of the within the Special Maritime and Territorial Jurisdiction of the United States. In short, Assange is neither a US subject of any kind, nor does he appear to have physically committed any overt act within the jurisdiction, even extended, of the United States.

To conclude the Espionage Act discussion, I harken back to New York Times v. United States, where Mr. Justice William O. Douglas wrote,

It is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.

The various concurring majority opinions in New York Times v. United States are a treasure trove of law directly against the attempt by the Obama DOJ to prosecute Julian Assange under the Espionage Act, and they are a roadmap for Assange’s defense if they do. If the DOJ undertakes such charges, it is a crystal clear signal their own written prosecutorial standards, as discussed above, are worthless and not worth the paper they are printed on.

The second charging modality against Assange that has been identified by the government relates to receiving and/or retaining stolen property. Receiving and trafficking in stolen property is by definition almost always a state law based offense; however, there is a Federal statute that has occasionally been used in situations having at least some analogy to Assange. The statute is 18 USC 641 and it was used to prosecute Samuel Morison and Jonathan Randal. The difference, of course, is that both Morison and Randal were government employees working in intel (Morison) and for the DEA (Randal).

In short, both gentlemen – Morison and Randal – were Bradley Manning, not Julian Assange; and in both cases the press was not pursued. Because the press is simply in a different posture in light of the First Amendment and the plethora of crystal clear caselaw. Secondly, 18 USC 641 facially contemplates a “thing” or “property” and the argument could certainly be made that no such tangible object was ever removed from the government’s possession, nor were they deprived of the use or possession thereof.

Frankly, while this is an argument I would certainly throw out were I defending Assange, I would not want to hang my hat on it. It is not so hard to see a court finding a digital copy of the cable files to be within the ambit of the statute; especially after the warning Harold Koh gave clearly setting up this application of section 641. The problem is, the DOJ still runs headfirst into the brick wall that is the First Amendment separation of press and publication under the seminal New York Times v. United States case. Again, it is impossible to read the majority opinions in New York Times and find the headroom for the US DOJ to prosecute Julian Assange short of engaging in the production of contorted and scurrilous horse manure.

Oh, and one other thing, about the thought that if Assange is prosecuted, the New York Times could be too; no less an authority than former Bush Attorney General Michael Mukasey suggests, while such may place the NYT squarely within the prosecutorial ambit, that the DOJ simply engage in straight up selective prosecution and go only after Assange. Nice. Remember when all those high minded bloggers were saying how principled Mukasey was and what a refreshing choice he would be to replace Alberto Gonzales? I do; that didn’t work out so well.

Eric Holder and the DOJ cannot possibly find jurisdiction to charge American contractors who torture and murder people in the course and scope of their employment by the US Government abroad, and cannot charge CIA supervisors and OLC lawyers who patently admit to destruction of evidence and conspiracy to commit war crimes; however, the same DOJ is now suddenly able to be so legally creative as to find a path to charging a person under the Espionage Act who is not a US citizen, owed the US no duty under citizenship and treason provisions, committed no act within the jurisdiction of the US and who is a member within the general definition of “press” and who only published purported whistleblower leaks given to him. It is amazing how the DOJ is willing to go out on that “limb” when it wants to, but can never so travel when the interests of justice really demand it to.

In conclusion, and to bring this post full circle, there is no established viable basis for prosecuting Julian Assange, in fact all precedent is to the contrary. To do so flies directly in the face of the once vaunted DOJ guidelines for criminal prosecution. For these reasons, there is no reason to consider the attempts by the US government to prosecute Assange as anything but a craven facial assault on the First Amendment and freedom of the press. After seeing the disdain, contempt and avarice the Obama Administration has displayed toward the Fourth Amendment and Fifth Amendment, I guess no one should be shocked.

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was (they probably regret that now I suppose).

But the complaint in this case was brought as to a group – LCR – that claimed locus in, and harm occurring within, the CACD. And, in fact, there was indeed much pretrial litigation of standing and scope and, before the case was allowed to proceed, the LCRs had to put up specific individuals claiming identifiable and quantifiable harm. Plaintiff LCRs eventually did that on the back of one originally identified and specified individual, to which a second specified and joined individual was later included for a grand total of two individuals the group “LCR” was allowed to proceed on as the nominal representative plaintiff.

There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.

Having every district court judge in the country with that kind of injunctive authority over military function is likely unacceptable to any administration, and will be for the Obama Administration. It has only grown to this absurd point through the fantastical overreaching of the LCRs and, now, Judge Phillips. They have gone a bridge too far.

And that is the problem here, by wildly overreaching, Judge Phillips has given the White House/Executive Branch legitimate and compelling grounds to appeal that are separate from the critical merits issue of the constitutionality and propriety of DADT, which is a discriminatory and loathsome policy and should be terminated immediately.

In this regard, a grave disservice has been done by Phillips to the cause of elimination of DADT. I think the DOJ has to appeal and seek stay, and will unfortunately do just that. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act, or not act, on the merits and expose themselves as either true to their word on elimination of DADT or craven impostors. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the duplicitous on DADT Obama White House something to hide behind when they deserve to be exposed.

The prevailing question about John McCain this year is: What happened? What happened to that other John McCain, the refreshingly unpredictable figure who stood apart from his colleagues and seemed to promise something better than politics as usual? The question may miss the point. It’s quite possible that nothing at all has changed about John McCain, a ruthless and self-centered survivor who endured five and a half years in captivity in North Vietnam, and who once told Torie Clarke that his favorite animal was the rat, because it is cunning and eats well. It’s possible to see McCain’s entire career as the story of a man who has lived in the moment, who has never stood for any overriding philosophy in any consistent way, and who has been willing to do all that it takes to get whatever it is he wants. He himself said, in the thick of his battle with Hayworth, “I’ve always done whatever’s necessary to win.” Maybe the rest of us just misunderstood.

Yes, no kidding, you certainly did misunderstand. Or were willfully blind because the bloated national media depiction of McCain has always been as fraudulent as he has always been.

There is a difference between facing a changed and shrunken external reality (which McCain surely now does) and changing one’s essential nature (which McCain almost certainly has not). He has always had a reckless streak, and he has repeatedly skated by after conduct that would have doomed others less resourceful, resilient, or privileged. As a navy pilot, he crashed three planes before being shot down by a surface-to-air missile over Hanoi. He spent harrowing years in captivity in North Vietnam, and parlayed that fame into a high-profile job as the navy’s liaison to the Senate, and then parlayed that—with the help of his second wife’s family fortune—into a political career in his adopted state of Arizona, first winning a seat in the House of Representatives in 1982, and then taking Barry Goldwater’s Senate seat upon his retirement, in 1986.

Yes, indeed. Put more simply, McCain is a dilettante who has always relied on his blue blood and family history, and then his POW status and wife and family’s largesse, to get everywhere he has gone; he has never been a man of accomplishment of his own accord. Nice of you to finally catch on.

After surviving his brush with shame during the Keating Five influence-peddling scandal in 1989, McCain embraced the cause of campaign-finance reform, which endeared him to good-government types and the press but to almost no one else in either party. Like other senators, McCain had taken campaign contributions and favors from savings-and-loan entrepreneur Charles Keating, and had then intervened with government regulators on Keating’s behalf. McCain’s zeal for campaign reform was an act of public atonement—ballsy, yes, but driven as much by Realpolitik as by principle.

“[D]riven as much by Realpolitik as by principle”?? What Todd, couldn’t you think of a softer sell? Jeebus, it was a freaking hollow fraud by McCain; have the guts to call it what it was, and still is.

McCain and his wife, Cindy, have been living essentially separate lives for years. She has spent most of her time in Arizona while he has spent the workweek in a Virginia condominium where, he once told me, he sometimes went months at a time without ever entering the living room, simply coming home to the kitchen and bedroom late at night and leaving again early the next morning. In 2008, McCain was deeply stung by a long New York Times article about his working relationship with a lobbyist, Vicki Iseman, and its assertion that certain McCain aides feared the relationship had some years earlier morphed into an affair. To this day, McCain declines to give interviews to the paper, which was once one of his favorite outlets. While associates say the McCains are companionable, one former aide allows, “I’m not going to tell you that they have a conventionally close marriage, but I’m just not going to get into it.”

Again, a pretty soft sell of the bitter truth. But, no complaints here on this part, Cindy is actually a very decent human and very good mother and, if you were her, would you want to live anywhere near John McCain on much more than a show basis? No.

All in all, considering the mainline media hacktacular vein Todd Purdum travels, this is a pretty brutal and pleasingly mainstream takedown of the horse’s ass John Sidney McCain III is and, more importantly ALWAYS has been. This may be shocking news to a lot of people who will read Vanity Fair and Purdum’s article in it. But it is not news to me, or the readers of Emptywheel and Firedoglake; because you have all, over the years, seen the following articles that make every single point Purdum does; well, with the exception that the work found here at Emptywheel and Firedoglake is much more forthright, and far better supported by links and foundational support for its conclusions. So, there is a bit of a difference I guess:

Tired McCain a Foundering Gluehorse Without Weaver

McCain Is A Clunker, Can I Trade Him In?

The Iseman Cometh, The Iseman Goeth

McCain Was The Most Reprehensible Of The Keating Five And He Hasn’t Changed

Ronald Reagan Endorses Obama, McCain Still Fraudulently Glomming Off Of Goldwater

John McCain The Narcissistic Carpetbagger

John McCain Still Living The Keating Five Lush Highlife

McCain Proves Cactus Is Not The Biggest Prick In The Desert

McCain: Is He Addled And Confused Or A Dishonorable Man?

For anybody that read those posts right here, there would not be a single word that would be either new or shocking in Purdum’s article on McCain. Especially the five core posts during the heat of the election: McCain Was The Most Reprehensible Of The Keating Five And He Hasn’t Changed, Ronald Reagan Endorses Obama, McCain Still Fraudulently Glomming Off Of Goldwater, John McCain The Narcissistic Carpetbagger, John McCain Still Living The Keating Five Lush Highlife and McCain Proves Cactus Is Not The Biggest Prick In The Desert.

In fact, the entire tenor of Purdum’s article seems eerily familiar; I wonder why that is? Since Purdum and Vanity Fair did not have the courtesy or journalistic chivalry to provide links, footnotes and attributions, I guess we will never know where Purdum formed his thoughts for the McCain article.

Whatever; my hat is actually off to Todd Purdum and Vanity Fair for getting the truth about The Old Gluehorse, John Sidney McCain III, out. Now, if only the rest of the national media would cop to the fact they have been played by this carpetbagging fraud from the outset, the record would finally be straight. The press owes the public that truth, and its explanation of how the malignant cancer that is Sarah Palin was planted in the mainline of the American body politic. Narcissism, fraud and Palin; that is the legacy of John Sidney McCain III.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit
Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for moral and unit cohesion on a case by case basis.

In essence, the government figured that, rather than lose the whole case, they would be “smart” and roll with being able to at least handle it on a case by case basis. But Judge Leighton saw through the government’s baloney in the remand of the very case they had argued it, Witt:

Added to this calculus, is the government’s plea for uniformity. Lt. General Charles Stenner, the government’s expert, made the unassailable point that uniformity and consistency in the administration of personnel policies is a desirable objective. When similar people are treated differently, morale and cohesion suffer. The government argues that Major Witt’s continued military service necessarily would result in the application of a different personnel policy to her than to other service members, such as those in the First Circuit, where the DADT statute was upheld as constitutional. See, Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008). The argument proves too much, however. The call for uniformity defies as-applied analysis. By definition, if uniformity is required, exceptions cannot be encouraged. And if exceptions cannot be encouraged, as-applied analysis is pointless. The direction to this Court to apply DADT to the specific circumstances of Major Witt compels it to reject any notion that the overriding need for uniformity trumps individualized treatment of Major Witt.
…..
For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

In a nutshell, Leighton called bullshit on the government, and rightly so. The government came out of the earlier appeal in Witt with the order that it only seek DADT discharges where it was provably appropriate, and then went and tried to continue to do just that in the most absurd case imaginable, and after having been excoriated on the facts by the 9th Circuit. And the decision to so proceed in the face of such overwhelming absurdity was made squarely by the Obama DOJ, the tools of the Administration that ran for, and took, office promising to do the opposite.

Which brings us back to the aforementioned Log Cabin Republican (LCR) case. Shocking, but true, the Obama DOJ doubled down on the hypocritical two faced argument. In LCR, Judge Virginia Phillips found DADT unconstitutional under both due process and First Amendment analysis and, seeing as how the case sought injunctive relief, told the plaintiff LCRs to submit a proposed injunction and the government to put any objections in writing thereafter. The plaintiff LCRs submitted their proposed injunctive order on September 16th, and the government filed its objection thereto yesterday. (By the way, the reply by the LCRs was literally just filed and is here).

Now the hilarity and absurdity of the Obama Administration policy rears its ugly head because, you see, part of the government’s objection in LCR is based on the Witt 9th Circuit decision that they should at least be entitled to make a showing on a case by case basis. When, at almost the same exact moment, the Obama Administration was proving in the further proceedings of the Witt case itself, that they could not, and would not, adhere to the spirit of Witt and proceed intelligently and on a case by case basis where they could prove morale and unit cohesion were at risk.

Instead, what the Obama Administration, by and through the actions of their Department of Justice, have proven that their current rhetoric about being dedicated to ending DADT is as empty as their similar campaign promises were hollow. Yet day after day, the Administration wonders why those on the left are unhappy and chastises them for not clapping loudly enough heading into midterm elections where turnout of the base is critical. Tin ear does not begin to describe this arrogance.

Career prosecutors have run the four U.S. Attorney’s offices in Texas for more than a year. Obama has made one U.S. Attorney nomination in Texas thus far: state Judge John B. Stevens Jr., who withdrew from consideration for Eastern District of Texas U.S. Attorney.

The Senate has confirmed 66 of Obama’s U.S. Attorney nominees. There are 93 U.S. Attorney posts.

Now the framing of the report is a complaint by John Cornyn, which I have little sympathy for, and who has undoubtedly contributed somewhat to the impasse; but that said, the facts are pretty astounding.

Over a year and a half into the Obama Presidency, and still over 30% of the US Attorney positions remain unfilled or, even worse, still under the control of Bush/Cheney appointees. The percentage is only that low due to a recent surge in investitures of US Attorneys; for most of the current Administration’s term, the situation was even far worse than it is as of today.

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

The critical importance of filling judicial vacancies is explained very nicely in a current post by Gaius Publius at AmericaBlog that expands on my Progressive Nominations/Goodwin Liu post yesterday:

This matters for several reasons. One is that the current judiciary is overwhelmingly Republican-appointed and conservative (including Movement-Conservative):

Over the last three decades, Republicans have put the appointment of conservative judges at the top of their agenda. And controlling the White House 20 of the last 30 years has allowed them to carry out their plan. By the time George W. Bush left office, 60.2 percent of the judges, including two-thirds of the Supreme Court, had been appointed by Republican presidents. The younger Bush appointed nearly 40 percent of all federal judges.

Yet Obama has been cautious to the point of weird about reversing this trend. While news stories on this subject headline his lack of judicial confirmations, stories like this one also contain tales of his caution; Bloomberg:

A lot of groups are still waiting for this president to nominate someone who will really reshape the bench,” said Barbara Arnwine, executive director of the Lawyers’ Committee on Civil Rights in Washington. The group supports expanding legal protection for blacks and other minorities.

Gaius Publius is exactly right. In fact, reshaping the Federal judiciary away from the hard conservative Federalist society bent that has been installed and meticulously grown by the Reagan and two Bush Administrations was one of the primary rallying cries for Democrats, including the Obama campaign, during the 2008 election. And, yes, there has been significant and unified Republican obstructionism; that is absolutely a factor. The problem is that there has been little if any fight put up by the Obama Administration and instead mostly weak resignation.

And you have to wonder how the situation on nominations at the White House is going to get any better soon with this news:

White House Counsel Robert Bauer will assume responsibilities for lobbying, transparency, government reform and a host of other government operations issues once White House ethics adviser Norman Eisen departs for his new role as ambassador to the Czech Republic, senior administration officials confirmed Friday.

Since Bauer was supposedly the go to guru for nominations, and especially judicial nominations, It is hard to see how a major dilution of his time (he is already White House Counsel after all, which you would think might take up a lot of time) by adding a giant new portfolio on ethics compliance is going to help the already languishing White House efforts.

There are always excuses like the economy and the push for healthcare; but it does not excuse a failure to make a better effort. And with the losses in both houses of Congress universally expected this November the maximum time of strength for the Obama Administration has been squandered to an inexplicable extent. It is time for them to make good and get the vacancies in the justice system filled while they still can. The bonus is it is a move that would actually please and fire up their base.

UPDATE: A reader has conveyed off blog some information stated to be more up to date (even though the Federal Courts site I linked said it was current as of today’s date) and I want to post it here.

1. While the Administrative Office of the U.S. Courts lists the number of vacancies as of the date of the article as either 103 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (used by bmaz) or 104 http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx by my count after taking into account last week’s confirmations, as of the date of the article there were only 99 openings (as matters stand presently at least 3 more vacancies will occur later this month) although I have not checked to confirm that the confirmed circuit court and district court nominees have in fact taken their oath of office for their new positions (as Justice Kagan did on the 7th following her confirmation on the 5th). If the new judges have not taken their oaths of office, one could always argue that the positions for which they were confirmed are still vacant.

2. There are only 40 pending nominations http://judiciary.senate.gov/nominations/111thCongressJudicialNominations/Materials111thCongress.cfm not 48.

Another site which may be useful and which appears to have up to date information is here: http://judicialnominations.org/

I will admit, I took my figures straight off the Federal Courts site and did not go count and tabulate districts and circuits individually. I don’t know which set of figures are the most accurate, so I am leaving them both here. Quite frankly it does not change the point of my post or conclusions one iota; I think it all demonstrates a problem with the Administration taking advantage of the opportunity to fill vacancies in the Federal bench (it is especially worse if there are really only 40 current nominees instead of 48 as I had).

Now if you listened to, and read Obama, and paid attention, you knew he was a centrist who worked by increment, compromise and seeking consensus as opposed to a liberal beacon that would take the country in a new and markedly different direction. Again, that said, the liberals and progressives who served as the ground force, heart and soul of Obama’s candidacy and election had every right to believe he would would at least include them at his table and utilize their talents in his Administration and appointments. There was an implicit deal made in this regard, and Obama purchased on it to his wild success. Now he has defaulted.

I first wrote significantly on the betrayal of the Obama White House toward liberal nominees in relation to the nomination of Dawn Johnsen to the critical post of head of the Department of Justice’s Office of Legal Counsel. The scorn for, and abandonment of, the Johnsen nomination still stands out because of the fact it is clearly established that there were 60 votes cloture on a Senate floor vote for Johnsen’s nomination. It wasn’t that Johnsen could not be confirmed, she absolutely could have been and would have been; it was that Obama did not want her and would not call for a vote.

Johnsen was not only the best person for a critical job, she was a symbol to a critical part of Obama’s and the Democratic constituency. It is far more than Dawn Johnsen however it is a pattern of abuse and scorn the Obama White House relentlessly exhibits to a major portion of the base. Currently the focus of progressives is on the potential nomination of Elizabeth Warren as head of the newly enacted Consumer Financial Protection Bureau. Despite some public platitudes, it is quite clear the Obama Administration does not want a competent crusader for citizens like Warren and, apparently, is working through the cut out of Chris Dodd to see Warren doesn’t get the nod.

Maybe the pressure will get to the Obama White House and Warren will get the post she deserves and would be perfect for; but don’t count on it because Obama, Geithner, Summers, Rahm and the boys on the Obama bus just do not want her. And they didn’t want Christine Romer either, so they let the misogynistic, consistently wrong about everything he touches, Larry Summers push her out. It is becoming a broken record with this White House.

Most distressing to me, because I practice law in the 9th Circuit, is the complete abandonment of two critical liberal judicial nominees, Goodwin Liu and Edward Chen; you may not be aware of because their nominations were tanked in the quiet of the night before those oh so hard working and diligent souls in the United States Senate jetted out of town for a 37 day vacation. Because Senate Rule XXXI specifies that all nominations not voted on and not held over by unanimous consent are extinguished and returned to the White House, the Liu and Chen nominations are toast.

Some of the still starry eyed Obama true believers who care about Liu and Chen (and both are incredibly excellent and worthy nominees) probably still think Obama will renominate them (and there is mention of that by, of course, an anonymous “White House official”). But even if he did, why in the world would anybody believe it to be anything other than a ruse to get their support leading up to the fall election? Obama renominated Dawn Johnsen and then hung her out to dry twisting in the wind until she finally ended the charade. It was a charade to sucker progressives, and there is no reason to believe he will not do it again. There is a track record with this White House, and it is not a good one; in fact, it is downright pathetic.

If you do not know about Goodwin Liu, you should. Liu is quite arguably the brightest and most accomplished young legal liberal star in the universe. He is the future of any liberal hope on the Supreme Court; like Antonin Scalia or John Roberts on the right, Liu is the future legal heavyweight for the liberal future. At only 39 years of age, Liu’s resume and record of accomplishment, service and involvement in the law makes Elena Kagan look like a malnourished piker. He is worth fighting for tooth and nail (and so is Ed Chen for that matter). Except Barack Obama did not lift a finger; didn’t ever expend any of his precious political capital in furtherance of the nomination and didn’t even utter a peep of protest as Harry Reid and the Senate let him die in the night as they were fleeing town. But that is the hallmark of the Obama Presidency in relation to liberals and/or progressives; they just don’t give a damn and won’t lift a finger (but they will expect the votes whenever elections come around).

The Obama White House also put up no fight for Peter Diamond, a worthy and critical nominee to the Federal Reserve Board. It is a pattern and practice with the Obama White House. If you are an only marginally qualified centrist Obama toady like Elena Kagan, they will fight like dogs for you; but if you are a strong progressive voice you are toast.

Maybe progressives ought to be considering someone like Elizabeth Warren for a much higher office than head of CFPB; or they can continue to be treated as “f**cking ret*rds” by the current denizens of the White House.