November Pro Forma Sessions

Don't forget to watch today's pro forma session at 9:00 a.m.! There are three further pro forma sessions scheduled, before the Senate gathers for a warm-up session at 2:00 p.m. on Monday, December 3rd.

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Orin Kerr (at Volokh Conspiracy) has a short piece, "That was fast," on US Attorney Rachel Paulose.

A good follow-up by Julie Kay at the National Law Journal, "Fired U.S. Attorneys Measure the Fallout."

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November 21

[Supreme] Court agrees to rule on gun case, taking up Heller, and revising the posed legal question from what was presented by the city of Washington, D.C. Uncharacteristically, the post has gathered quite a few comments.

Eugene Volokh has a good collection of posts at "The Second Amendment and the Living Constitution," and Jack Balkin weighs in at "The Heller Case and the 2008 Election: Has the Supreme Court Helped the Democrats?."

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FAS has a new collection of CRS reports, including one that recounts the post-2001 shift in government policy from forbidding arms sales to Pakistan, to Pakistan being the #1 "arms client" of the US.

The total value of Pakistan's 2006 arms purchases [$ 3.6 billion] from the United States nearly matches the total value of all Foreign Military Sales (FMS) program purchases by Pakistan from the United States for the entire period from FY1950-FY2001 ...

... should the Bush Administration decide that actions taken by the government of Pakistan are contrary to the national security interests of the United States, the President can suspend or terminate existing arms sales agreements or prevent the delivery of weapons previously ordered, as he deems appropriate.

The foreign policy aspect is a joint venture of Congress and the president, with Congress promulgating a law, in 1985, that forbid arms sales to Pakistan.

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Yesterday's pro forma session of the Senate lasted 22 seconds. I wonder how much of that time was spent in quorum call?

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The government's policy of secret snooping meets Judge Brinkema, in the al-Timimi case. Reported by Washington Post staff writer, Jerry Markon, in "Government Secrecy May Lead to New Trial In Va. Terrorism Case." I don't think the judge's frustration with the CIA has play that results in a forced disclosure of secret snooping, because al-Timini has zero evidence of being under secret surveillance. ["Secret" being secret from the courts, as well as from the person being surveilled]

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November 26

Trent Lott to formally announce his resignation before the end of the year. I wonder if he's caught up in a John Aravosis "outing the Republican gays" smear campaign. Or maybe he's going to pull a Larry Craig. Those wacky senators!

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H/T HowAppealing, an AP report, "Congress, Courts Examine 'State Secrets'" indicates that the Senate may debate a statutory expression aiming to promote a consistent application of the "state secrets" doctrine among federal courts.

Specter, Sen. Edward Kennedy, D-Mass., and others are working on legislation that would direct federal judges to review the president's state secrets claims and allow cases with merit to go forward.

The article also makes this assertion ...

FISA ... also allows people who believe they were spied on illegally to sue the government for damages and to request materials that would prove the surveillance.

That's untested, and in practice, it's completely unworkable. Imagine a flood of suits based on "belief," where the government would have to respond (privately, to the court) in each and every individual case. While FISA may provide a private (civil) cause of action, I haven't found a way that the provision can be used by a person who "thinks" they were snooped illegally. The person has to establish the status of being "aggrieved" (snooped illegally), before damages attach.

Another article, Foes of electronic spying may have a new way to challenge it, probes the same contention of using FISA to pierce the "state secrets" doctrine.

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November 30

Jurist: Leahy rejects White House executive privilege claim in US Attorney firings probe

From the ruling that accompanies Senator Leahy's press release,

That Mr. Fielding asserts executive privilege on behalf of the President is surprising in light of the significant and uncontroverted evidence that the President had no involvement in these firings. To date, the President has not taken responsibility for the firings and his own statements regarding the firings refer to others making the decisions. The Attorney General's former chief of staff, the former political director at the White House and the Attorney General himself have testified under oath that they did not talk to the President about these firings. Courts analyzing executive privilege claims have made clear that the purpose of the privilege is to protect the President's ability to receive candid advice. The President's lack of involvement in these firings--by his own account and that of many others--calls into question any claim of executive privilege.

I've noted on several occasions, the disconnect between the assertion that "the president may fire at will," and the absence of evidence that it was President Bush who ordered the firing. There's a striking (and IMO, indefensible) absence of personal accountability for these replacement decisions.

Some previous comments at July 1 and July 8 posts.

From the Washington Times, "Leahy Rejects Claim of Privilege," comes news of a direct admission of the absence of accountability. Amazing.

White House spokeswoman Dana Perino said the administration was "baffled" by the ruling because Democrats have long asked for information on what Mr. Bush knew of the firings. She said that with Mr. Leahy's acknowledgment that the president was not involved, Congress should focus on other pressing matters, such as the federal budget.

"If he is now saying the president wasn't aware of it, as we have said from the beginning, then I don't understand why he continues to have this rope-a-dope that's not going to go anywhere," she told reporters.

I want to know who has the authority to decide to replace a US Attorney, seeing as how it can happen with no involvement from the president.

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Jurist: Canada court strikes down refugee agreement with US

I've not read the Candian court's opinion, but if Jurist is accurately characterizing the decision, it shows the extent of what are probably unintended consequences of a "tough" policy against suspected terrorists.