Obama’s filing against 9/11 families: so bad it’s good

http://errortheory.blogspot.com/2009/06/obamas-filing-against-911-families-so.html

Obama’s filing against 9/11 families: so bad it’s good Bizarre amicus brief totally demolishes the Second Circuit’s dismissal of the families’ suit, then replaces it with the most mendacious stupidity imaginable. Now the Supreme Court will HAVE to hear the case, just to avoid the implication that it accepted this garbage. Blogburst logo, petition9/11 families were stunned this week to learn that President Obama is asking the Supreme Court NOT to review their effort to recover damages from the government of Saudia Arabia and from several Saudi princes for funding al Qaeda’s 9/11 attack on America. That the defendants did funnel vast sums of money to al Qaeda was accepted as a given by the appellate court, as was the fact that al Qaeda was known to be dedicated to and engaged in violent attacks against America. So what was the Obama administration’s reason for siding with the Saudis? Solicitor General Elena Kagan’s amicus brief to the Supreme Court had to admit that the Second Circuit Court of Appeals erred in its grounds for denying the suit against the Saudi princes. No, the fact that the princes did not actually direct the al Qaeda attack on the United States does not relieve them of liability for attacks that they funded. The precedent on this is clear. As long as the defendant knew “that the brunt of the injury” from his tortious act would be felt in America, then:

… he must ‘reasonably anticipate being haled into court there’ to answer for his actions. [Calder v. Jones, 465 U.S. 783, 790. Cited on Kagan’s p. 18.]

Nevertheless, said Kagan, she could think of a way around the appellate court’s utter failure to get the heart of the case right. The families’ suit falls under the 1976 FSIA law that establishes exceptions to the principle of sovereign immunity. This law does not allow jury trials. Thus while the appellate court was clearly wrong to say that the suit should not be heard, Kagan suggests that there are snippets in the ruling that can be read as the appellate court acting in its role of trier of fact, and thus ruling against the families for providing insufficient evidence. In other words, instead of seeing the Second Circuit as rejecting the basis of the suit, we should see them as accepting the suit, and ruling against it on the substance. To make her argument that the appellate court actually did try the facts, she quotes the Second Circuit’s statement that:

Conclusory allegations that [Prince Turki] donated money to charities, without specific factual allegations that he knew they were funneling money to terrorists, do not suffice.

But of course the families DID marshal reasons why Turki could be expected to know that his donations were going to al Qaeda, as indicated by the appellate court’s further statements that there was no personal jurisdiction even if the defendants did “know that their money would be diverted to al Qaeda,” or were “aware of Osama bin Laden’s public announcements of jihad against the United States.” (Cited in the families’ reply brief, p.8, and in Kagan’s brief, p. 19, respectively.) For Kagan to pretend that the Second Circuit acted as a sufficient trier of fact, when it explicitly asserted that the facts don’t matter, is just an attempt to mislead the Court. The evidence that the Saudi Princes knew they were funding al Qaeda has yet to be considered by U.S. courts, even though Kagan herself admits that if they did know, they should be held liable. The families respond Of course the families are angry that Obama is blocking their access to the courts, despite their legitimate claims under U.S. law:

The Administration’s filing mocks our system of justice and strikes a blow against the public’s right to know the facts about who financed and supported the murder of 3,000 innocent people. It undermines our fight against terrorism and suggests a green light to terrorist sympathizers the world over that they can send money to al Qaeda without having to worry that they will be held accountable in the U.S. Courts for the atrocities that result. … The Administration’s filing is all the more troubling in that it expressly acknowledges that the courts below applied incorrect legal standards in dismissing the Saudi defendants, but nonetheless argues that the case — one that seeks to account for the terrorist attacks against America and the murder of our family members — does not warrant the Supreme Court’s time.

This at the same time as Obama insists that al Qaeda operatives held at Guantanamo Bay must be granted access to U.S. courts. Concocted rights for terrorists, yes. Following the law for the victims of terrorism, no. On Saudi state liability, Kagan again misleads to the point of outright dishonesty Here too, Kagan is forced to start out by noting that the grounds on which the Second Circuit Court of Appeals dismissed the families’ claims is not valid. The circuit court held that damages for terrorist acts have to be brought under the FSIA law’s special exception for terrorist acts, which requires that the state defendant be designated by the State Department as a terror supporting state. Since Saudi Arabia has not been so designated, suit cannot be brought under this provision, end of case. Wrong, as Kagan herself explains:

Congress’s concern was not to impose new limits on the domestic tort exception, but instead to expand jurisdiction to cover a narrow class of claims based on conduct abroad. See, e.g., H.R. Rep. No. 702, 103d Cong., 2d Sess. 3, 5 (1994) (explaining that the bill would “expand” jurisdiction to include claims by an American who is grievously mistreated abroad by a foreign government”).

This was necessary because the domestic tort exception only applies to injuries that occur on U.S. territory. Specifically, the domestic exception allows suit when:

1605(a)(5) – money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state.

In the wake of the Iranian hostage taking in Tehran, Congress wanted designated terror-supporting states to be liable for harms that they inflict on Americans even on their own territory, but this in no way was supposed to limit suit over harms that occur within the United States, such as the 9/11 murders. Confronted with this obviously wrong ruling by the Second Circuit, Kagan again tries to cobble together an alternative grounds for granting Saudi immunity. To fullfill this improbable command from above, she decides to flat-out lie about precedent, big bald astounding lies. Torturing “tortious” Notice that the language of the domestic tort exception is perfectly clear that what has to occur inside the United States is the personal injury or death, not the decision that leads to the personal injury or death. Suppose that the home office of a state owned shipping company decides to scrimp on safety equipment for its cargo vessels, leading to loss of American lives when cargo is offloaded in an American port. This is exactly the kind of thing that FSIA was intended to cover, but Kagan pretends otherwise, arguing that not only the tort (the harm), but also the “tortious act or omission” that creates the harm, have to take place inside the United States. In many cases there is no separation between the harm and the act that creates it. They both occupy the same time and place. Neither does the language of torts typically distinguish between the tort and the tortious act. Instead, the tortious act is seen as being realized when the tort (the harm) actually occurs. Kagan’s ploy is to try to make a distinction between the tort and the “tortious act” that leads to it, and she is able to come up with some out-of-context references to make it sound as if precedent demands that both the harm and the decision-making that leads to the harm have to occur here in America. She claims, for instance, that:

In Amerada Hess, the Court considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception. 488 U.S. at 441.

Applied to the current case, she is clearly suggesting that the “domestic effect” corresponds to the 9/11 attacks, and that the “conduct abroad” corresponds to the statutorily required “tortuous act or omission” that in both cases took place outside of U.S. territory. A look at the actual Supreme Court ruling, however, shows this to be a gross misrepresentation of Ameranda Hess. Looking up Argentine Republic v. Amerada Hess Shipping Corp. and turning to p. 441 we find what the case was actually about:

In this case, the injury to respondents’ ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred “in the United States.”

In other words, it was the harm itself that in this case did not occur within U.S. territory. Contrary to Kagan’s representation, the Court was NOT making a distinction between the harm and decision that led to it and claiming that both had to occur within the United States. This kind of blatant misrepresentation of precedent is lawlessness! Is this how the Obama administration treats precedent? As fodder for utterly dishonest word games? YES. To preserve its own reputation, SCOTUS will have to hear the families’ case The Supreme Court asked the Obama administration to submit this brief. It cannot be ignored. If SCOTUS accepts guidance from this contemptuous document, then it is implicated in the Obama administration’s contempt for the law. If the sheer perversity of Kagan’s filing does force the Court to hear the families’ case, that would be a great outcome, but the downside risk is equally amplified. If the Court DOES accept Kagan’s guidance, it is a black black day for America. Meretricious cites and arguments dominate every paragraph of Kagan’s brief, except in two place: where she shoots down the Second Circuit’s patently errant grounds for dismissal. It almost seems like she started with a brief in support of the families’ suit before getting the order from Obama to side with the Saudis. Apparently she decided that it was fruitless to try to support the Second Circuit’s reasoning, so she let the demolition of the Second Circuit’s ruling stand, then supplied her own just as bad case for Saudi immunity. However it came about, Kagan’s destruction of the Second Circuit ruling is so competent, and her substitute arguments for immunity so incompetent, that the whole almost seems designed to force a Supreme Court hearing. Could she have intentionally sabotaged her own brief? Doubtful, given that the Obama DOJ just overruled its own career lawyers in order to drop an already won case against three New Black Panthers who were caught on tape using weapons to intimidate voters. Apparently the Obama administration just really is this stupid and malicious. In any case, it seems unlikely that Kagan’s shenanigans will get past the justices. Antonin Scalia is unlikely to forget the FISA case opinion he wrote in 1992, addressing the very question of harms resulting in the United States from decisions made by foreign entities in their home countries. His conclusion? In a breach of contract case where the only tie to the United States was the option of receiving payment in dollars in New York City, the Court denied immunity. Only the harm itself had to take place on U.S. territory, not the decisions that led to the harm, and the opinion was unanimous. Obama’s imperial presidency: he does not want to be bound by the 1976 Foreign Sovereign Immunity Act, and says so The family group states directly that:

The filing was political in nature and stands as a betrayal of everyone who lost a loved one or was injured on September 11, 2001.

Indeed, the entire first section of Kagan’s brief is replete with claims that exceptions to sovereign immunity should be determined politically. That is the way it used to be, before Congress passed the FSIA act specifically in order to take these determinations out of the political realm. The United States only started granting any exceptions to the legal tradition of sovereign immunity in the 1950’s, after some nation-states started getting heavily involved in commerce. If state enterprises could not be held liable in U.S. courts, they would have a competitive advantage over private industry. Not smart policy during the cold-war contest between capitalism and communism. Exceptions were at first made on a case by case basis by the executive, but such arbitrariness does not suit the needs of commerce, so Congress made an explicit decision to take this power away from the executive. Even so, Kagan’s brief hints over and over (p. 4-10) that executive prerogative should still hold sway, but without ever making an explicit case that FSIA intrudes on the inherent powers of the presidency, and without ever stating what the president would want to do with those powers in the present case if the court were to recognize them as pre-eminent. The reason Kagan doesn’t make these things explicit is because they are damning. Obama knows that the Saudi’s are liable under U.S. law, but for his own political reasons he does not want them to be held liable, but neither does want the nation to understand that he considers currying favor with the people who attacked us on 9/11 to be more important than justice for his own murdered countrymen. The president does indeed have some inherent power here, just as President Bush had inherent power to wiretap conversations with al Qaeda operatives both at home and abroad, regardless of what Congress put in the FISA wiretapping law. Bush did abide by FISA, but he didn’t have to.* Obama is going further. He does not want to abide by FSIA, but is unwilling to make the case that the particular exemption from FSIA that he is asking for is a legitimate exercise of his inherent powers, or even assert what he would do with that power. He just wants the courts to do his dirty work for him, asking them to grant immunity to the Saudis based on bogus claims about FSIA law and precedent. Conservative justices might be tempted to recognize the president’s inherent powers in the area of foreign policy, but they should not let him exercise this power on false pretenses. If he wants to claim that he has the inherent power to grant immunity to the Saudis and that this is how he wants to exercise that power, he can do it publicly, but he should not be allowed to overrule Congress on the pretense that he is doing the will of Congress. To allow this subterfuge would destroy fundamental FSIA precedents while failing to attain the virtue of the pre-FSIA regime, where the president had to stand or fall by his explicitly political decision-making. If Obama wants to invoke the inherent power of the presidency here, he at the very least has to be willing to admit it. * FISA court precedent on inherent powers The powers of Congress to regulate in an area where the president has his own inherent authority was addressed by the FISA court in September 2002:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

The contrast to the present case is instructive. Bush’s Solicitor General Ted Olson did not hide the fact that President Bush wanted the court to recognize his inherent authority to conduct signals intelligence. With that power duly recognized, Bush still went the last mile to conform to the law as enacted by Congress. That is what it means to “uphold our fundamental principles and values,” while Obama, who keeps accusing President Bush of failing to uphold our values, engages in legal subterfuge, showing as much contempt for the law as for our 9/11 families. To join our blogbursts, just send your blog’s url.

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GITMO, 9/11 families, and trials

*cross-posted from Assoluta Tranquillita*

Remember a few days ago when Judge Col., James Pohl refused to halt the trial of USS Cole suspect Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 Navy destroyer bombing that killed 17 U.S. sailors in Yemen? It was one of my B*N*S*N pieces last week.

That story is here:

Judge refuses to delay Gitmo detainee’s trial

Rejection of Obama request could complicate effort to close prison

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SAN JUAN, Puerto Rico – A military judge at Guantanamo on Thursday rejected a White House request to suspend a hearing for a USS Cole bombing suspect, creating an unexpected challenge for the Obama administration as it reviews the U.S. war-crimes trials process.

The judge, Army Col. James Pohl, said his decision was difficult but necessary to protect “the public interest in a speedy trial.” The ruling came in the case against Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 Navy destroyer bombing that killed 17 U.S. sailors in Yemen.

It seemed to take the Pentagon completely by surprise…. [Go read the rest here.]

It seems the President was not happy with the Colonel’s decision, and just now comes this story:

President Obama Likely to Order Military Commission Charges Dropped Against Terrorist Suspect Al-Nashiri Friday

February 05, 2009 5:46 PM

<!–

Lindsey Ellerson

–>

ABC News has learned that on Friday, President Obama will likely order the Department of Defense’s Military Commission to withdraw charges against terrorist suspect Abd al-Rahim al-Nashiri. The charges may later be reinstated in a military commission or pursued in a civilian court. Al-Nashiri will remain in custody.

The announcement will not be made until after President Obama meets with the families of victims of terrorist attacks on 9/11 and on the U.S.S. Cole, where he will assure them that this step is not being done to be lenient towards al-Nashiri. The move is being done to stop the continued prosecution of al-Nashiri in a court system that his administration may ultimately find illegitimate, not for any other reason, sources told ABC News.

President Obama has expressed concern about whether the military commissions set up by the Bush administration are the proper way to go forward in pursuing charges against the U.S. detainees, and on January 22 he asked all the judges supervising the trials of detainees for a continuance of 120 days, so a team of administration officials could review the best way forward.

In almost the cases, that continuance request was granted. But last week the judge supervising the al-Nashiri trial — Army Col. James L. Pohl, the chief judge at the Guantanamo Bay war crimes court — said he would not heed President Obama’s request for a 120-day continuance, or delay, in prosecutions of terrorism suspects. Pohl called the president’s request “not reasonable” and not “in the interests of justice.”

The arraignment of al-Nashiri is scheduled for Monday, February 9.

Al-Nashiri has been identified as the former Persian Gulf Operations Chief for al Qaeda and the mastermind of the attack on the U.S.S. Cole. In March 2007 he testified in military court that he only confessed to certain crimes because he has been tortured for the previous five years.

Asked for reaction to the news, Commander Kirk Lippold (Ret.), former Commander aboard the U.S.S. Cole when it was bombed on October 12, 2000, told ABC News that “I am concerned about the President considering dropping the charges because it may be indicative that the president does not intend to follow the military commissions process which has undergone extensive legal and legislative review.”

“For some reason the administration says what’s been expressed through the legislature is not sufficient,” Lippold said of the military commissions. “They need to allow the process to go forward.”

The 26-year Navy veteran said he found the decision to close the detention facility at Guantanamo Bay “disappointing,” but he seemed willing to hear the president out…[read more on this here]

I have actually been following a story today of the 9/11 families and the USS Cole survivors families expecting to meet the president at the White house today:

OBAMA INVITES 9/11 KIN TO WHITE HOUSE

By CARL CAMPANILE

Last updated: 4:58 pm

February 5, 2009

Posted: 12:52 pm

February 5, 2009

President Obama – under fire for suspending trials of suspected terrorists and phasing out Guantanamo military prison in Cuba – has invited family members of victims killed on 9/11 to the White House for a meeting tomorrow.



The White House sit down is scheduled for 3:30 p.m. in the Roosevelt Room.

Attendees told The Post they will urge Obama to swiftly prosecute the terrorists responsible for the evil 9/11 slaughter.



Relatives said they will grill the new president over his controversial plans to close Gitmo and temporarily suspend the trials against Gitmo detainees – including those who bragged of plotting to blow up the World Trade Center.



Retired Deputy Fire Chief Jim Riches – whose firefighter son Jimmy died at Ground Zero – was ticked off when Obama ordered those actions. Riches last month visited Gitmo and attended the trial of Khalid Sheikh Muhammed and other alleged 9/11 plotters, who stood up and admitted their guilt.



“We saw these people face to face. I want to tell the president what happened at Gitmo. That these detainees were laughing about what they did. I wish these trials were on TV. Americans would be outraged.”



“I don’t want what happened to my son happen to anyone else,” Riches said.



Riches said he was pleased that the White House agreed to meet 9/11 families and hopes the president shows up at the meeting. It was unclear if he would personally attend the staff meeting.



Debra Burlingame, whose brother, Charles, was the pilot of hijacked American Airlines Flight 77 that crashed into the Pentagon, said she was eager to hear from the new commander-in-chief.



“I’m hoping it’s a substantative meeting,” she said. (here)

I have checked the White House site for mention of this. Apart from the Press Secretary Robert Gibbs repeatedly answering questions with “I don’t know”, or general bafflegab (you can read today’s briefing here if you are having trouble sleeping tonight,) there was no mention of this meeting taking place today.



From all I have read today, the 9/11 families and the USS Cole families are very upset about the plans to stall the military trials, and the closing of GITMO.

One I read:

9/11 Families Urge Obama to Continue Guantanamo Terror Trials

Three families of firefighters killed at the World Trade Center on Sept. 11 want “a firm commitment” from Obama to prosecute suspects in the 2001 attacks.

NEW YORK — Three families of firefighters killed at the World Trade Center on Sept. 11 want to meet with President Barack Obama to urge him to reverse his decision to suspend the trial of five detainees in Guantanamo Bay, Cuba, who admit roles in the terror attacks.

In a meeting with reporters at their attorney’s office on Sunday, the families deplored what they called “delays and confusion” in the former Bush administration’s effort to prosecute suspects in the 2001 attacks, which killed about 3,000 people, saying they want “a firm commitment” that the same process won’t continue under Obama.

“Seven and a half years is a very long time for 3,000 families to wait,” said Maureen Santora, whose son was among the 343 firefighters killed when the twin towers collapsed after being struck by two hijacked jetliners. Nearly 2,800 people were killed at the World Trade Center, another 184 when a third hijacked jetliner struck the Pentagon and 40 when a fourth plane crashed in a field near Shanksville, Pa. The totals don’t include the 19 hijackers.

Along with Santora and her husband, Al Santora, a retired deputy fire chief, the delegation included retired deputy chief Jim Riches and his wife, Rita Riches, whose son was killed on Sept. 11, and Sally Regenhard, whose son also perished at the trade center.

The families’ position was spelled out in a brief letter mailed Sunday to Obama, requesting a meeting “at your earliest convenience.”

There was no immediate comment from the White House on Sunday…(more here at FOX )

Chuck Norris has some opinions on where GITMO should be IF BO insists on closing it:

Top 10 Reasons Gitmo Should Be on Alcatraz

When I heard about the possibility that the terrorist detention camp at Guantanamo Bay Naval Base (Gitmo) will move to Alcatraz Island in the middle of the San Francisco Bay, I got excited. Ideas from economic stimuli to renewed patriotism started flooding my mind.

Here are the top 10 reasons I believe Gitmo should be moved to Alcatraz:

10. D-Block. Not the hip-hop group, but the row of solitary confinement cells at Alcatraz. Need I say more? (Of course, “Gitmo and the Golden Gates” might make a hit rap song, too.)

9. It is rumored that “Dirty Harry” (Clint Eastwood’s notoriously tough San Francisco cop character) still roams the streets with his .44 Magnum. Would terrorists really try to escape if he were across the bay? Do they feel that lucky? Well, do they?

8. It would give Congress something better on which to spend those hundreds of billions of dollars in bailout money than the absolute waste of more Wall Street bonuses and partisan pork.

7. My buddy the Governator needs a bailout, and the new “Hasta la Vista, Alcatraz” tour could be a gigantic boost for California tourism.

6. It’s about time for a sequel to “Escape From Alcatraz,” called “Bet Your A– That You Better Stay on ‘The Rock.'”… [go read the rest of this here]

Need I tell you that Nancy Pelosi has something to say about Alcatraz?:

Pelosi Shrugs off Alcatraz as Possible Terror Detention Facility

Republicans opposing an Obama administration order to close Guantanamo Bay prison facility within a year suggest sending terror detainees to House Speaker Pelosi’s district.

House Speaker Nancy Pelosi on Sunday shrugged off Republican suggestions that the federal government reopen Alcatraz prison in her San Francisco district to house detainees from Guantanamo Bay, Cuba.

President Obama this week signed an executive order calling for the closure of the prison at Guantanamo within the year. Republican Rep. Bill Young then suggested to White House counsel Greg Craig that the prisoners who could not be released back to their home countries or sent to a third country be put up in “the Rock,” the famous military installation and prison that closed down in 1963 and is now part of the National Park Service.

Asked whether that was a serious proposal, Pelosi said, “It is — no.”

“Perhaps he’s not visited Alcatraz,” Pelosi said of Young while displaying little sense of humor. “Alcatraz is a tourist attraction. It’s a prison that is now sort of like a — it’s a national park.”

That explanation didn’t stop House Minority Leader John Boehner from repeating the suggestion on Sunday, making that point that closing down Guantanamo by year’s end may not be the best plan considering the recidivism rate of terrorist detainees is about 12 percent.

“If liberals believe they ought to go, maybe we ought to open Alcatraz,” Boehner, R-Ohio, told NBC “Meet the Press.” Being reminded that Alcatraz is a national park, Boehner responded, “It’s very secure.”…[more here]



Yes, Alcatraz would be very secure, and with Chuck patrolling? Never mind, we’ll always have Harry – Reid that is. No such thing as NIMBY for him.

The insanity continues.

[Update: MoveAmericaForward has something to say on this, via Michelle Malkin here: