Thursday, May 28, 2009

Obama Puts Republicans Behind Political 8-Ball -- Again -- With Pick of Sotomayor for Top Court

Under Strong Pressure by Hard-Line Conservatives to Wage an All-Out Fight, Republicans Risk Accelerating Their Already-Rapid Decline in Voter Support by Alienating Latinos and Women If They Go For Judge Sotomayor's Jugular During Confirmation Hearings or Stall Her Nomination With a Filibuster on the Senate Floor

Sotomayor's roots

Supreme Court nominee Sonia Sotomayor speaks with reporters, friends and family after being introduced by President Obama during a ceremony Tuesday in the East Room of the White House. Her nomination to become the first Latina to serve on the high court -- as well as the third woman -- has put Republicans in a political bind: If, as urged to do so by hard-line conservatives, launch an all-out attack on Sotomayor's nomination, they risk further alienating two important voting blocs the GOP is already losing -- Latinos and women. (Photo: Shawn Thew/European Pressphoto Agency)

(Posted 5:00 a.m. EDT Thursday, May 28, 2009)


National Public Radio

President Obama reached for history Tuesday when he nominated to the Supreme Court a Hispanic woman with a powerful personal and professional narrative.

But U.S. Appeals Court Judge Sonia Sotomayor, who would be the first Latina and only the third woman to serve on the high court if confirmed, is destined to do much more for the nation's first African-American president than add a potent chapter to his legacy.

Politically, Obama's decision to name Sotomayor, 54, over other equally qualified but non-Hispanic women is viewed by many as a masterstroke.

His choice lays the groundwork for potential — and significant — long-term political benefits for the Democratic Party within the nation's fast-growing Latino community.

And he has delivered to Republicans, who had promised a fight over the nomination, despite their depleted influence on Capitol Hill, what amounts to a lose-lose situation:

# Alienate much of the Latino community and a fair number of women -- groups that already have been turning away from the GOP significantly -- with a concerted effort to tear down a clearly qualified nominee.

# Or, conversely, anger the party's own shrinking and increasingly conservative voter base, which has historically been roused to action -- and fundraising -- by Supreme Court battles.

"I'm not a person to give the Republicans advice," says Mark Tushnet, a Harvard Law School professor, "but I would think it would be politically inadvisable to fight too hard. She's got the legal credentials to qualify for the Supreme Court, and nitpicking about things would be a mistake."

Says Ramona Romero, president of the Hispanic Bar Association: "It's important for us to talk about what this means for all Americans: That we can all aspire to the highest offices in the land."


Obama had said that he would look for a nominee who understands that justice "isn't about some abstract legal theory or footnotes in a case book." He has also cited his desire to name someone with empathy for "people's hopes and struggles."

In introducing Sotomayor at a news conference Tuesday in the White House East Room, the president strongly framed a life story that, in part, mirrored the president's own.

It began in a South Bronx housing project where, guided by a devoted, widowed mother, Sotomayor attended Catholic school, then won top honors at Princeton University and Yale Law School, where she was an editor of the Yale Law Journal.

Obama lauded Sotomayor's "mastery of the law" and her long and varied legal career as a prosecutor, corporate litigator, trial judge and appeals court judge for the past 11 years. "She has never forgotten where she began," he said.

Anticipating attacks from the right, Sotomayor in her comments said she "strives never to forget the real-world consequences of my decisions on individuals, businesses and government" and described herself as an ordinary person blessed with extraordinary experiences.

It's that narrative that Republicans would have to chip away at -- if they choose a battle during a time when "all the cards are sitting on the Democratic side," says Supreme Court historian David Alistair Yalof.


The immediate conservative push-back against Sotomayor was muted.

Top GOP senators like John Cornyn of Texas repeated the theme that the Senate must ensure that Sotomayor will decide cases based on the law, rather than her own "personal politics, feelings and preferences."

In a brief statement, Republican National Committee Chairman Michael Steele said that Sotomayor's nomination provided a "perfect opportunity for America to have a thoughtful discussion about the role of the Supreme Court in our daily lives."

Those on the hard-line conservative right, however, are angling for something a little more assertive.

Wendy Long of the Judicial Confirmation Network characterized Sotomayor as a "liberal judicial activist," labeled as "terrible" her opinion in a racial discrimination case now before the Supreme Court, and criticized her for saying in the past that her experiences as a woman and a Latina "should affect" her legal decisions.

"Judge Sotomayor will allow her feelings and personal politics to stand in the way of basic fairness," Long says.

[Not surprisingly, the sharpest barbs against Sotomayor were fired by right-wing radio personality Rush Limbaugh, who on his show called her a "reverse racist" for siding against white firefighters in a highly controversial affirmative action case that is currently pending before the high court.

[Limbaugh, who is known for stirring up controversy, said he hopes Obama's nominee fails. "Do I want her to fail? Yeah. Do I want her to fail to get on the court? Yes. She'd be a disaster on the court," he said. "Do I still want to Obama to fail as president? Yeah. ... He's going to fail anyway, but the sooner the better here so that as little damage can be done to the country."

[Limbaugh's attacks aside, many influential Latino community leaders were optimistic and warned the GOP against rushing to conclusions before she pleads her case before the Senate, which must confirm her.

["I do think Republicans have to be very careful and not oppose this nomination just for the sake of it," Brent Wilkes, executive director of the League of United Latin American Citizens, told CNN. "Because when you think about that the length of time the Latino community has waited for this nomination, it's been a long time."

["If they (Republicans) just out of sheer ill-will ... try to block the nomination, that's going to have a big backlash in the Hispanic population," Wilkes warned. "And we won't have to do anything except sit back and watch the GOP destroy themselves, because it's really going to be that bad."]

But in the current political climate, and with Democrats nearing a 60-vote filibuster-proof majority in the Senate, which holds the confirmation card, it appears unlikely that Republicans are going to spend much political capital on what would be an ugly, and largely fruitless, fight.

Sotomayor was confirmed in 1998 for the U.S. Court of Appeals for the 2nd Circuit by a Senate vote of 67-29. All Democrats and 25 Republicans -- including seven still in the Senate, as well as now-Democratic Senator Arlen Specter of Pennsylvania -- voted for her.

Twenty-nine Republicans voted no, including 11 still in the Senate.


If confirmed, Sotomayor will make history. But her ascension would very likely have little effect on decisions rendered by the ideologically divided court.

A recent analysis of her opinions, says attorney Tom Goldstein, writing on SCOTUSblog, show her to be in essentially "the same ideological position" as the man she would replace, Justice David Souter.

The power would remain with the man in the middle, Justice Anthony Kennedy, the swing vote who sides most often with the court's four conservatives but also works with the four on the left side, too.

Lee Epstein, a professor at Northwestern University School of Law, with colleague Tonja Jacobi, has referred to Kennedy as the "super median," a justice so powerful that he exerts significant control over court decisions.

Given that any person nominated by Obama would be unlikely to change the ideology of the court -- except, perhaps, on some narrow issue -- the Sotomayor nomination became almost inevitable.

"My sense is that Obama reached a conclusion that he would be unable to find someone who could move Kennedy to the left, so he looked to other political considerations," says Neil Devins, a law and government professor at the College of William and Mary, where he's also the director of the law school's Institute of Bill of Rights Law.

"Could Diane Wood or Elena Kagan move Kennedy to positions more favorable to the Obama administration? If no, then he'd just be status-quoing things," Devins says. Wood is an appeals court judge; Kagan is the nation's solicitor general. Both women were on Obama's Supreme Court short list.

But Stanford Law School Dean Larry Kramer argues that Sotomayor, though ethnically a first, is status quo herself – an appellate court judge who, bottom line, amounts to a "safe and predictable" choice.


Picking another judge for a high court already stocked with them suggests that Obama doesn't have fresh vision for the Supreme Court, Kramer says.

He would have preferred that Obama choose a governor, an elected official or a statesman or woman -- "somebody who's had to deal with real-world complications," he says, "with experience in the political world."

Kramer says the Supreme Court justices he defines as great did not have judicial backgrounds, including the late Chief Justice Earl Warren. Warren, a former California governor and attorney general, brought together a divided court and issued landmark decisions that included Brown v. Board of Education, in 1954, which banned public school segregation.


The Hispanic National Bar Association's Romero said she got a call early Tuesday asking if she could be at the White House by 10 a.m. She didn't have to ask why.

"I wasn't born yesterday," said Romero, who preferred to talk about Sotomayor's qualifications, rather than her ethnic heritage. "The president picked absolutely the best candidate -- her education, her broad experience, and growing up in New York City in a family of modest means dealing with issues not currently reflected in the court. She is not somebody who was born with a silver spoon in her mouth."

Conservative Latinos, such as the Reverend Miguel Rivera of the National Coalition of Latino Clergy and Christian Leaders say they recognize the historic significance of Obama's nomination but will push senators to question Sotomayor about her pro-abortion-rights stance, for example.

"We commend President Obama for considering a Latina nominee," Rivera says. "But putting aside ethnicities, it is very important for members of the Senate to engage in a strong debate to evaluate the nominee."

Does this represent a split in the Latino community?

"We hope not, we hope not," Rivera said. "But we are willing to support the possibility of a filibuster."


Obama wants his nominee confirmed by the opening of the Supreme Court's fall session in October. He is likely to get his wish.

"Absent there being some huge skeleton in her closet, or sounding unfit for the job during Senate confirmation hearings, it is inconceivable that she won't be confirmed," Devins says.

"Pragmatic Republicans are going to be forced to say: 'Can we stick another knife in our body when we know that she'll get confirmed anyway?'"

(Additional reporting by CNN.)

# # #

Volume IV, Number 42
Special Report Copyright 2009, National Public Radio
The 'Skeeter Bites Report Copyright 20009, Skeeter Sanders. All rights reserved.


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Monday, May 25, 2009

Behind Cheney's PR Offensive: To Block Release of CIA Watchdog's Damning 'Torturegate' Report

Former Vice President's Verbal Broadsides Against Obama Over Interrogation of Terror Suspects and Planned Shutdown of Guantanamo Prison Camp May Be Aimed at Preventing President From Declassifying and Making Public CIA Inspector General's Report That's Expected to 'Seriously Undermine' Cheney's Justification for Alleged Torture Tactics

Critics have long compared former Vice President Dick Cheney to Darth Vader -- the black-helmeted villian in George Lucas' now-classic "Star Wars" film series -- as the real power behind the Bush administration. But it now appears that Cheney had a reason to go on his aggressive public-relations offensive against President Obama: To prevent the president from declassifying and making public a 2004 report by the CIA's inspector general of his investigation into the agency's use of alleged torture tactics against so-called "high-value" detainees at Guantanamo -- an investigation that the former vice president tried to stonewall. (Image courtesy SF Weekly)

(Posted 5;00 a.m. EDT Monday, May 25, 2009)


The Public Record

Former Vice President Dick Cheney intervened in CIA Inspector General John Helgerson's investigation into the agency's use of torture against "high-value" detainees, but the watchdog was still able to prepare a report that concluded the interrogation program violated some provisions of the International Convention Against Torture.

The report, which the Obama administration may soon declassify, was completed in May 2004 and implicated CIA interrogators in at least three detainee deaths in Afghanistan and Iraq and referred eight criminal cases of alleged homicide, abuse and misconduct to the Justice Department for further investigation, reporter Jane Mayer wrote in her book, The Dark Side, and in an investigative report published in The New Yorker magazine in November 2005.

In The Dark Side, Mayer described the report as being "as thick as two Manhattan phone books" and contained information, according to an unnamed source, "that was simply sickening."

"The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized," Mayer wrote. "The source said, 'You couldn't read the documents without wondering, "Why didn't someone say, 'Stop!'""


Mayer added that Cheney routinely "summoned" Helgerson to meet with him privately about his investigation, launched in 2003, and soon thereafter the probe "was stopped in its tracks." Mayer characterized Cheney's interaction with Helgerson as highly unusual.

Cheney's "reaction to this first, carefully documented in-house study concluding that the CIA's secret program was most likely criminal was to summon the Inspector General to his office for a private chat," Mayer wrote. "The inspector general is supposed to function as an independent overseer, free from political pressure, but Cheney summoned the CIA inspector general more than once to his office."

"Cheney loomed over everything," the former CIA officer told Mayer. "The whole IG's office was completely politicized. They were working hand in glove with the White House."

But Mayer said Cheney's intervention in Helgerson's probe proved that as early as 2004 "the vice president's office was fully aware that there were allegations of serious wrongdoing in the [torture] program." Helgerson has denied that he was pressured by Cheney.

In October 2007, then-CIA Director Michael Hayden ordered an investigation into Helgerson's office, focusing on internal complaints that the inspector general was on "a crusade against those who have participated in [the] controversial detention program."


News reports have suggested that when Helgerson's report is declassified it will seriously undercut claims made by Cheney in numerous interviews that the systematic torture of "high-value" detainees produced valuable intelligence, thwarted pending terrorist plots against the United States and saved "hundreds of thousands of lives."

In addition to showing the inconclusive nature of the value of intelligence gleaned through torture, the report will likely show that Helgerson warned top CIA officials that the interrogation techniques administered to detainees "might violate some provisions of the International Convention Against Torture."

A November 9, 2005, report published in The New York Times said Helgerson's report "raised concern about whether the use of the [torture] techniques could expose agency officers to legal liability."

Sources quoted by the Times said "the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

"The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world."

The American Civil Liberties Union filed a Freedom of Information Act lawsuit to gain access to Helgerson's report. Portions of the report have already been turned over to the organization, but they were heavily censored.


Mayer also suggested that the CIA may have decided to destroy 92 interrogation videotapes in November 2005, after Senator Jay Rockefeller (D-West Virginia) began asking questions about the tapes referenced in the report. Helgerson had viewed the tapes at one of the CIA's "black site" prisons.

"Further rattling the CIA was a request in May 2005 from Senator Rockefeller, the ranking Democrat on the [then-Republican-controlled] Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites," Mayer wrote in her book. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.

"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaida operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller. But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [then-CIA Director Porter] Goss in September 2005."


[However, The 'Skeeter Bites Report, in an exclusive story posted on December 10, 2007, reported that a letter by a Virginia-based U.S. attorney to a federal appeals court appeared to contradict Hayden's public statements on the destruction of the hundreds of hours of video footage of "extreme" interrogations of suspected al-Qaida operatives by strongly indicating that at least two of the videos still existed.

[Charles Rosenberg, the U.S. attorney for the Eastern District of Virginia, wrote that his office viewed two videotapes of CIA interrogations of al-Qaida suspects as recently as September 19, 2007 and October 18, 2007 -- contrary to Hayden's statement that the tapes were destroyed in 2005.

[Rosenberg's five-page letter, addressed to Judge Karen Williams, chief judge of the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia and to Judge Leonie Brinkema of the U.S. District Court in nearby Alexandria, was referring to the trial of Zacarias Moussaoui, the lone suspect convicted in the September 11, 2001 terrorist attacks.

[Brinkema was the presiding judge in the Moussaoui trial. A copy of the letter, dated October 27, 2007, was obtained by The 'Skeeter Bites Report.

[Rosenberg wrote that his office was informed on September 13, 2007 by the CIA that the agency "obtained three recordings -- two videotapes and one short audiotape -- of interrogations" of suspected al-Qaida terrorists.

[Moussaoui, the so-called "20th hijacker," pleaded guilty in 2006 to charges of conspiring to hijack planes and crash them into the World Trade Center and the Pentagon, admitting that he knew about the attacks and did nothing to stop them. Ironically, Moussaoui was in jail in Minnesota as the September 11 attacks unfolded. He's now serving a life sentence without the possibility of parole at the federal Supermax prison in Florence, Colorado.]


Helgerson's report has been highly sought after by members of Congress and civil liberties organizations for some time. Justice Department torture memos released last month contain several footnotes to the inspector general's report noting the watchdog's concerns about the fact that interrogators strayed from the legal limits set forth in the memos on how specific interrogation methods could be used.

For example, a footnote in a May 2005 Justice Department legal opinion says Helgerson found that, "in some cases," the "waterboard was used with far greater frequency than initially indicated ... and also that it was used in a different manner."

According to court papers in a contempt lawsuit the American Civil Liberties Union filed against the CIA over the destruction of 92 interrogation videotapes, "at the conclusion of [Helgerson's] special review in May 2004, [CIA Office of Inspector General] notified [the Justice Department] and other relevant oversight authorities of the review's findings."

A month later, according to documents released last month by the Senate Select Committee on Intelligence, Helgerson's report was made available to top lawmakers on the committee.


That same month -- June 2004 -- then-CIA Director George Tenet asked the White House to explicitly sign off on the agency's torture program with a memo that authorized specific techniques, such as waterboarding. A similar request was also made by the agency at the start of Helgerson's probe in 2003, according to a front-page story published in The Washington Post last October.

"The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency's use of interrogation techniques such as waterboarding against al-Qaida suspects -- documents prompted by worries among intelligence officials about a possible backlash if details of the program became public," the Post reported.

"The classified memos, which have not been previously disclosed (and remain classified), were requested by then-CIA Director Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents," the newspaper said. "Although Justice Department lawyers, beginning in 2002, had signed off on the agency's interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing."

It's unknown whether Helgerson's report led Tenet to request the later memo from the White House. According to the Post, "the CIA's anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program" and "Tenet seemed ... interested in protecting his subordinates" from legal liability.

In July 2004, "the CIA briefed the [Senate Intelligence Committee's] Chairman and Vice Chairman on the facts and conclusions of the Inspector General special review," the Post reported.

[Editor's Note: A direct link to the article on The Washington Post Web site could not be established because it is over six months old and available only for purchase.]


In an interview last August on Public Radio International's "To The Point," Mayer said Helgerson "investigated several alleged homicides involving CIA detainees" and forwarded several of those cases "to the Justice Department for further consideration and potential prosecution."

"Why have there been no charges filed? It's a question to which one would expect that Congress and the public would like some answers," Mayer said. "Sources suggested to me that ... it is highly uncomfortable for top Bush Justice officials to prosecute these cases because, inevitably, it means shining a light on what those same officials sanctioned."

In The Dark Side, Mayer wrote that Helgerson was "looking into at least three deaths of CIA-held prisoners in Afghanistan and Iraq."

One of those prisoners was Manadel al-Jamadi, who was captured by Navy SEALs outside Baghdad in November 2003.

"The CIA had identified him as a 'high-value' target, because he had allegedly supplied the explosives used in several atrocities perpetrated by insurgents, including the bombing of the Baghdad headquarters of the International Committee of the Red Cross, in October 2003," Mayer reported in The New Yorker.

"After being removed from his house, Jamadi was manhandled by several of the SEALs, who gave him a black eye and a cut on his face; he was then transferred to CIA custody, for interrogation at Abu Ghraib," Mayer reported. "According to witnesses, Jamadi was walking and speaking when he arrived at the prison. He was taken to a shower room for interrogation. Some forty-five minutes later, he was dead."

At the time of his death, Jamadi's head was covered with a plastic bag, he was shackled in a crucifixion-like pose that inhibited his ability to breathe and according to forensic pathologists who have examined the case, he suffocated.

The CIA interrogator implicated in his death was Mark Swanner, who was never charged with a crime despite a recommendation by investigators working for Helgerson that the Justice Department launch a criminal investigation into the matter.

The Swanner/Jamadi case was forwarded in 2004 to then-Deputy Attorney General Paul McNulty, where the file remained. McNulty is under scrutiny by a special prosecutor investigating the role he and other Bush administration officials played in the controversial firings of nine U.S. attorneys in 2006.

Helgerson also "had serious questions about the agency's mistreatment of dozens more, including Khalid Sheikh Mohammed," Mayer wrote in her book, adding that there was a belief by some "insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations."

(Additional reporting by Skeeter Sanders.)

# # #

Volume IV, Number 41
Special Report Copyright 2009, The Public Record.
The 'Skeeter Bites Report Copyright 2009, Skeeter Sanders. All rights reserved.


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