Defending Michael Hertz, et al.

Defending who? Why the government lawyers who wrote this brief (PDF). Actually, this diary is an attempt to defend the Obama Administration for the positions Hertz and Company took on behalf of the illegal surveillance case discussed here by Glenn Greenwald (btw, good on Olbermann. I have ripped him more times than I can count so I owe him a kudo.)

Of course the problem is not with Messrs Hertz, et al. The issue is the POLICY of the Obama Administration that authorizes the assertion of the defenses raised. And yes, the authorization of these defenses does constitute policy. We are all hopeful the courts will reject these arguments but the Obama Administration has embraced these views, which reflect Bushism on steroids.

So congrats dkos diarist, you have done a fine job of defending Hertz and Co. Not so good a job defending President Obama and Attorney General Holder.

Speaking for me only

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    The latest response to any criticism (5.00 / 1) (#1)
    by andgarden on Wed Apr 08, 2009 at 01:42:00 PM EST
    of the Obama administration is apparently to accuse you of wanting to impeach him. That's what passes for discourse at dkos these days.

    It's not Obama (5.00 / 1) (#9)
    by Warren Terrer on Wed Apr 08, 2009 at 02:45:41 PM EST
    who is playing 11 dimensional chess, it's his followers.

    They have to keep adding dimensions every time Obama does something that contradicts his alleged progressiveness. How many are we up to now?


    More like 11 dimensional ... (5.00 / 3) (#24)
    by Robot Porter on Wed Apr 08, 2009 at 03:46:01 PM EST

    There's no published rules (5.00 / 1) (#29)
    by Ben Masel on Wed Apr 08, 2009 at 05:29:28 PM EST
    for 11 dimensional chess, so you make them up as convenient.

    My favorite line from the diarist (5.00 / 5) (#2)
    by Big Tent Democrat on Wed Apr 08, 2009 at 01:45:28 PM EST
    "Law is NOT created by decisions on motions."

    Um, yes it is. Of course the district court opinion will be appealed in these issues by the losing party and they will argue the same positions to an appellate court and no doubt to the Supreme Court.  The Obama Administration appealed the state secrets privilege ruling of Judge Vaughn Walker to the 9th Circuit. Moreover, to act as if a district court opinion will not be cited as precedent is simply absurd.

    What nonsense.

    Strange (5.00 / 2) (#7)
    by Steve M on Wed Apr 08, 2009 at 02:39:41 PM EST
    I cite lower court decisions on motions every day.  Any litigator understands this.  What a weird thing to say.

    A related strange claim is the idea that when the DOJ asserts a defense like the one in this case, that doesn't tell us anything about official government policy.  Uh, I'm pretty sure it does.  It's not like they outsourced this case to some random lawyer to defend, and he came up with a creative legal theory.  When the DOJ asserts a novel sovereign immunity argument, I'm pretty confident that the argument has been vetted and that it's something the DOJ is comfortable asserting as a policy matter.

    Also, I may be confused on this point, but isn't it generally true that you can seek injunctive relief against the government (as opposed to money damages) notwithstanding sovereign immunity?  I mean, Marbury v. Madison was a case against a government agent in his official capacity...


    Ex Parte Young (5.00 / 2) (#8)
    by Big Tent Democrat on Wed Apr 08, 2009 at 02:45:38 PM EST
    is the case you are looking for on the injunctive relief question.

    On the rest of your comment, it is pretty darn obvious.

    Frankly, the diarist struck me as someone smarter than that diary. Maybe just a misfire.

    Apparently he thinks this is some run of the mill Section 1983 or Bivins case. Obviously, it is not.


    But isn't (5.00 / 3) (#11)
    by Steve M on Wed Apr 08, 2009 at 02:53:31 PM EST
    Ex Parte Young about suits against state officials, as opposed to federal?

    I feel like there's some nuance here I'm missing.  Because if the only way you could sue the federal government to stop them from doing something illegal was to get their prior consent, you'd have a government of unlimited powers.


    Good point (none / 0) (#12)
    by Big Tent Democrat on Wed Apr 08, 2009 at 03:01:42 PM EST
    Perhaps there is a case on point on federal sovereign immunity. To be honest, I have never been involved in a lawsuit against the federal government.

    I have cited Ex Parte Young too many times to count in actions against states and commonwealths..


    The diarist (none / 0) (#13)
    by Fabian on Wed Apr 08, 2009 at 03:03:43 PM EST
    has impressed me as someone who usually runs on an even keel.  I was a bit surprised to see this diary.

    Agreed (none / 0) (#15)
    by Big Tent Democrat on Wed Apr 08, 2009 at 03:04:40 PM EST
    I honestly haven't followed every (5.00 / 2) (#4)
    by inclusiveheart on Wed Apr 08, 2009 at 01:53:45 PM EST
    comment in this latest disruption of the divine balance, but I really did not see all that many people making the claim that the lawyer who filed the brief was to blame - except the people who respond to just about every Obama Administration news item that makes them uncomfortable by citing Sy Hersh's "Cheney mole" theory.

    Although I don't really believe that diarist is one who intentionally misleads, I do think it was a somewhat desperate attempt to rationalize this revelation in the face of an ugly truth that threatens to burst the bubble people seem so desperate to keep in tact.

    The really troubling thing is that I think that public pressure could potentially sway the Obama Administration on something like this.  But if people keep pretending that there is some seventh level of chess being played or blaming "Cheney moles" for everything, there will be no way to move the Administration's policies.

    How long before a "Cheney mole' (none / 0) (#30)
    by Ben Masel on Wed Apr 08, 2009 at 05:32:47 PM EST
    can be considered a Holder holdover?

    They haven't even managed to fire Mary Beth *#%!'n Buchanan.


    I don't know the answer to that (none / 0) (#31)
    by inclusiveheart on Wed Apr 08, 2009 at 06:18:18 PM EST
    question, but when the crowd turns it will be ugly.

    That's the risk of being the object of this kind of adoration.

    Expectations are high and when they aren't met, things can and often do come crashing down.


    After scanning (5.00 / 1) (#19)
    by Ga6thDem on Wed Apr 08, 2009 at 03:23:21 PM EST
    through the comments I was suprised to see quite a few people who refused to be apologists for the Obama administration. Of course, there's also the same apologists out in full force that have been doing it for months.

    Look (5.00 / 1) (#20)
    by Big Tent Democrat on Wed Apr 08, 2009 at 03:24:51 PM EST
    Some folks want to believe. What can yo do?

    I expected better of the diarist myself. I point the finger at him.


    We can call this ... (5.00 / 1) (#25)
    by Robot Porter on Wed Apr 08, 2009 at 03:48:50 PM EST
    There's (none / 0) (#32)
    by Ga6thDem on Wed Apr 08, 2009 at 06:41:47 PM EST
    really nothing you can do. They have to figure it out for themselves. They are either going to have an allegiance to issues or to Obama. It seems that choice is being sent out by the administration.

    Gee, I wouldn't give Olbermann (5.00 / 1) (#22)
    by TeresaInSnow2 on Wed Apr 08, 2009 at 03:33:56 PM EST
    too much credit.  Where was he during the FISA vote?

    At this point, anything these folks say is about as toothy as the dreaded "sternly worded memo".

    He's your candidate, learn to enjoy him, I say.

    Olbermann is apparently figuring that the Obama-love-legion is leaving him and it's time to get some non-transient viewers back.  Too late.

    But, as an avid Obama supporter (none / 0) (#34)
    by BackFromOhio on Thu Apr 09, 2009 at 03:43:56 PM EST
    Olbermann, when he criticizes, might be heard.  He's been consistently hard on Obama admin as to constitutional issues and has brought back Jonathan Turley to discuss the constitutional law issues.  When asked by Olbermann the other night what the DOJ position says about Obama principles, Turley stated unequivocally that principles matter, but Obama has always been about programs, not principles.  

    Also, Howard Fineman, when asked by Olbermann why Obama DOJ taking the positions it has, responded that Obama feels any other position would alienate the intelligence community whose support is needed for Admin Iraq & Afghanistan programs.
    Anyone else have any thoughts on validity of this explanation?  Would the intelligence community really be alienated if Obama DOJ took different position holding highest levels of government respnsible?


    I think media players (none / 0) (#35)
    by lilburro on Thu Apr 09, 2009 at 04:17:44 PM EST
    tend to be very romantic about the intelligence community.  The Columbia Journalism Review, Glenn Greenwald, and others have noted how they come back to the same sources, how they do not convey multiple perspectives, etc.  

    Obama kept Gates, kept Kappes...how much more appeasement could the CIA possibly need to function.


    Skipped the dkos diary but (5.00 / 2) (#23)
    by oldpro on Wed Apr 08, 2009 at 03:42:21 PM EST
    read Greenwald and listened to the Olbermann clips...really, really hard to do listen to that delivery.  (SHUT UP, she explained).

    Then, hit paydirt in the Turley interview.  Wow.  He is steamed.  Rightly.

    but (5.00 / 1) (#26)
    by Turkana on Wed Apr 08, 2009 at 03:51:58 PM EST
    obama needs no defending. he is infallible.

    What you are witnessing is (5.00 / 1) (#28)
    by inclusiveheart on Wed Apr 08, 2009 at 05:13:44 PM EST
    hundreds of internal battles playing out before your very eyes.

    He's infallible, but he's not and that's super challenging to deal with when you're convinced - con-vinced! - that he's infallible.


    First off, I did not know that Olbermann (5.00 / 3) (#27)
    by AX10 on Wed Apr 08, 2009 at 04:13:37 PM EST
    had it in him to say anything negative about Mr. Obama.  Second,  I agree with the second poster on the thread regarding who is playing "11 dimension chess".
    Obama Supporters = Playing 11 dimensional chess
    Obama = Playing Establishment Politics

    Third, most of us knew what Obama would do when he got into office.  

    Fourth, Obama is ambling towards one-term wonderdom.


    Actually 'kudos' is singular (none / 0) (#3)
    by Demi Moaned on Wed Apr 08, 2009 at 01:52:04 PM EST
    But you have company:
    Some commentators hold that since kudos is a singular word it cannot be used as a plural and that the word kudo is impossible. But kudo does exist; it is simply one of the most recent words created by back-formation from another word misunderstood as a plural. Kudos was introduced into English in the 19th century; it was used in contexts where a reader unfamiliar with Greek could not be sure whether it was singular or plural. By the 1920s it began to appear as a plural, and about 25 years later kudo began to appear. It may have begun as a misunderstanding, but then so did cherry and pea.

    Congratulations (none / 0) (#5)
    by squeaky on Wed Apr 08, 2009 at 01:56:17 PM EST
    And another kudo to you for being a cunning linguist.

    "just doing their job" (none / 0) (#6)
    by scribe on Wed Apr 08, 2009 at 02:22:45 PM EST
    is an attitude among governmental employees which tyrants have relied upon since time immemorial to assist in effecting their tyranny.

    It's a moral cop-out in which the person uttering it is attempting to defuse, divert or avoid the fact that what they are doing is immoral, amoral, unprofessional, or illegal.  On a moral and ethical level, it is no different from "just following orders", and is an equally flimsy defense.

    The fact of the matter is, was, and always will be that if you take the paycheck, you buy the whole package and you own it - ethically, morally and legally.  If you can't handle the fact that your work is tearing down the very law and Constitution you swore to uphold and defend, then you should either quit or, if you really need the paycheck, recognize that the morality, ethics and law-abidingness you might have prided yourself upon are no more.

    Prostitutes (of all prices and persuasions) have a greater level of honesty and integrity than do clowns like that diarist or, I suspect, the lawyers he'd defend - the hookers know, admit, and agree to the fact that they are selling their [body part(s), minds, whatever] for a price.  The hookers accept that whatever illusions they may have had about being "above it all", as well as scruples against crossing the legal/moral/ethical line left the building about the same time they said "yes" to the money.

    That's where those DoJ attorneys reside - either they're honest and admit they have prostituted themselves to expanding government power at the expense of the Constitution they swore to uphold, or they're dishonest.  The diarist, in trying to hide that reality, neither does a good job of it nor makes himself look credible.  The diarist is selling the idea that one can be a little bit dishonest, and that's about as credible as claiming one can be a little bit pregnant.  In other words, not possible.

    And as to both of them - if they don't like the opprobrium, they should quit taking the paycheck.

    Disagree with this comment (none / 0) (#10)
    by Big Tent Democrat on Wed Apr 08, 2009 at 02:47:12 PM EST
    But I have an obvious personal conflict as I have in the past "been subject to opprobrium" because of my clients.

    I should have been more clear (none / 0) (#14)
    by scribe on Wed Apr 08, 2009 at 03:04:12 PM EST
    This pertains to those who choose to represent governments (and corporate entities) in establishng hegemon (of whatever flavor) over individuals.

    We are all aware, and accept, that representing (say) criminal defendants does not make the lawyer a co-parcener in the allegations against the defendant, because the criminal defendant's lawyer is there to force the government to prove, beyond a reasonable doubt, the allegations of the charge and to disprove the allegations insofar as possible.  The defense lawyer stands up for the Constitution and the rights it's supposed to protect (when was the last time, before Ted Stevens, that you heard about the government standing up for the Constitutional rights of the accused?).

    But as to those government lawyers, the gist of what I say remains:  if you take Sam's nickel, you own the injustice Sam is bringing into the world.


    I can accept that (none / 0) (#16)
    by Big Tent Democrat on Wed Apr 08, 2009 at 03:06:45 PM EST
    A government lawyer does, in a sense, have a duty beyond zealous representation. I take your point. But I think the real authority falls above that of the government trial lawyer. there is "policy setting" being done, and to me that happens higher than the trial lawyer level.

    Fair enough, but (none / 0) (#17)
    by scribe on Wed Apr 08, 2009 at 03:17:07 PM EST
    the point is some ingenious lawyer is who came up with these arguments.  I do not expect the pols at the top of the food chain to be the ones most familiar with the ins and outs of all the specific provisions of the statutes involved, nor of the cases the government mis-cites, mis-quotes and takes out of context.  That is all the work of the minion lawyers whose names are on the brief.  The pols at the top are merely saying "I want X to happen.  Make it happen."  The trial lawyers are carrying that out.

    And, as any lawyer knows, the creative effort in carrying it out - by brief-writing in this instance - is the pure creative effort of the lawyer and near the heart of the work that is "being a lawyer".   That's why "on the brief" credit is something we fight over - it says "this is my creation", as much as screen credit in a movie or co-authorship credit in a book do for the actor or writer.

    These DoJ clowns own this brief, and deserve to be the subject of opprobrium for the rest of their miserable careers because of it.


    Well (none / 0) (#18)
    by Big Tent Democrat on Wed Apr 08, 2009 at 03:21:17 PM EST
    Yes an no. You make the higherups out to be ingenues. Rather silly imo.

    Didn't say that, either. (none / 0) (#21)
    by scribe on Wed Apr 08, 2009 at 03:31:38 PM EST
    The policy makers are on the hook for an entirely different kind of condemnation.  They could just as easily have said:

    "I want to end this warrantless wiretapping once and for all, clean up the mess which Bush and Cheney have left and make sure it never happenbs again.  Stop it now.  If there is someone who should be tapped, get probable cause for it and get a warrant.  Put together a comprehensive report on who did what, to whom, when, and what laws were (arguably) violated and recommendations on whom to prosecute and what for.  Get it done and on my desk in [x] days.  I will write a letter to the Court telling the Court what we are doing, in support of an adjournment.  And then, the government will release all this information, publicly.  The government will end this practice, pay the piper for what was done, prosecute those who broke the law and move on.

    And if anyone decides they want to oppose or undermine this decision, get their name and end their career."

    The policy-makers didn't do that.  They told the lawyers: "Get rid of the suit without disclosing anything".

    I don't know whose wrongdoing is worse - they are two different types.  The wrongdoing was a team effort and all the wrongdoers played their respective parts.  And none of them gets a pass from me.


    On Olbermann (none / 0) (#33)
    by BigElephant on Thu Apr 09, 2009 at 09:01:34 AM EST
    He gets slammed on this blog a fair bit, but I think he's generally a very reasonable person.  I know he was against Hillary in the primary, but so was I.  But he's actually been a critic of Obama as president.  Of course he's more of a critic of the Republican party, but he does tend to call them how he sees them.  IMHO.

    And while I was an Obama supporter during the election cycle, and in general like his policies -- this one is a real stinker.  I just don't get it.  The upside here seems so small for him and it seems to go against much of what he believes.