December 4, 2009

From the Desk of Judicial Watch President Tom Fitton:

Will Terrorist’s Lawsuit Dictate How President Makes War-Time Decisions?

We filed last week an important amicus curiae brief in the United States Court of Appeals for the Ninth Circuit arguing for the reversal of a lower court’s decision allowing to go forward a lawsuit against former Bush Deputy Assistant Attorney General John Yoo. The Yale Law School human rights clinic filed the lawsuit on behalf of “dirty bomber” Jose Padilla.

Padilla, who is currently serving a seventeen-year sentence in federal prison after being convicted of providing material support to terrorists, among other criminal offenses, maintains that his constitutional rights were violated when President Bush designated him as an “enemy combatant” and ordered his detention by the U.S. military, allegedly at the recommendation of Yoo. Padilla is asking the court to award him monetary damages for these alleged violations of his rights.

According to our brief, filed on November 28, 2009, the U.S. District Court erred by refusing to dismiss this lawsuit, giving rise to serious concerns about “separation of powers”:

“Judicial Watch’s primary concern is that the District Court failed to consider adequately the weighty separation of powers concerns that arise whenever the Judicial Branch seeks to involve itself in the presidential decision-making process. These separation of powers concerns are all the more significant when the decision-making process involves national security and the exercise of the President’s powers as Commander in Chief. If the decision is allowed to stand, it would represent an unprecedented expansion by the Judicial Branch into the President’s ability to receive war-time advice from his advisors.”

Can you imagine the chaos if every presidential war-time decision had to be run through the courts? This would have a chilling effect on the president’s ability to protect U.S. national security for certain.

It’s been more than seven years now since Padilla was taken into custody by authorities, so here’s a bit of background on him.

Padilla is an American citizen who moved to Egypt in 1998 and spent the next several years traveling throughout the Middle East. According to U.S. intelligence officials, he was introduced to senior Osama bin Laden lieutenant Abu Zubaydah in 2001. He then received training from Al Qaeda operatives, returning to the United States allegedly to conduct reconnaissance and to build and detonate a “radiological dispersal device” (also known as a “dirty bomb”) within the United States, possibly in Washington, D.C. On May 8, 2002, authorities arrested Padilla at Chicago’s O’Hare International Airport. On June 9, 2002, President Bush designated Padilla an “enemy combatant” and transferred him to a military prison.

Specifically, President Bush determined that Padilla “posed a continuing, present and grave danger to the national security of the United States,” and that “detention of Mr. Padilla is necessary to prevent him from aiding Al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens.”

So here’s the question for the appellate court: Will the court allow a lawsuit filed by a terrorist to dictate how the President of the United States obtains advice and makes decisions during war-time? As crazy as it sounds, that’s exactly what will happen if Padilla and Yale Law School are successful in his lawsuit.

And by the way, what a scandal it is that Yale Law School would lend its support to a known terrorist in this litigation.

(On a related matter, there’s a rally in New York City tomorrow to protest Attorney General Eric Holder’s decision to give unprecedented rights to terrorists by bringing Khalid Shaik Mohammed and other terrorists to New York for a civilian criminal trial. You may want to go to the rally if you’re in the area. The rally, led by family members of 9/11 victims, is scheduled for noon at Foley Square near the federal courthouse where the trial will be.)

“Climategate” Scandal Heats Up

Have global warming alarmists engaged in a concerted effort to manipulate and destroy key data and suppress the opinions of scientists with a different take on the theory of climate change? That’s been the charge levied by global warming dissenters for years. And now they have the hard evidence to prove it.

Two weeks ago, thousands of emails and documents from University of East Anglia’s Climate Research Unit (CRU) were released to the world by a whistleblower. CRU is a center of global warming research (Al Gore styled) and had provided the basis for many of the big government policies to combat the so-called global warming threat. These new documents tell a very interesting story. Here’s the scoop according to The Wall Street Journal:

The scientific community is buzzing over thousands of emails and documents — posted on the Internet last week after being hacked from a prominent climate-change research center — that some say raise ethical questions about a group of scientists who contend humans are responsible for global warming.

The correspondence between dozens of climate-change researchers, including many in the U.S., illustrates bitter feelings among those who believe human activities cause global warming toward rivals who argue that the link between humans and climate change remains uncertain.

Some emails also refer to efforts by scientists who believe man is causing global warming to exclude contrary views from important scientific publications.

And how far was the global warming crowd willing to go squash alternate views?

According to the email correspondence, global warming activists conspired to keep dissenters out of scientific journals. They discussed ways to massage their data to fit their man-made hypothesis. And they evidently deleted the data on which much of their theories are based. The documents include evidence that information was being destroyed in violation of freedom of information laws both here in and in the United Kingdom.

Consider what Phil Jones, one of the world’s leading climate experts and the head of the University of East Anglia’s Climate Research Unit, wrote in one email to a U.S. based scientist at Penn State: “If they ever hear there is a Freedom of Information Act now in the U.K., I think I’ll delete the file rather than send to anyone…We also have a data protection act, which I will hide behind.” The “they” refers to two Canadian researchers who persistently sought the latest climate change raw data so that they could fact check published reports on global warming.

Jones, who just resigned over the scandal, also told that same researcher that global warming skeptics’ research was unwelcome: We “will keep them out somehow — even if we have to redefine what the peer-review literature is!”

(The Wall Street Journal has extracted the most interesting emails, which you can read for yourself here.)

So here’s the truly frightening part of all of this. We’re not just talking about a group of scientists bickering over who will get the upper hand in some science journal. The entire world is basing their environmental policies on the work of these climatologists. Global warming proposals collectively will cost trillions of dollars and greatly expand government reach and power. President Obama and his EPA are promoting massive growth of government command and control in regulating U.S. carbon output.

Climategate is an eye-opener. One climatologist characterized the scandal as a “shameful, dark day for science.” No question about that. And it should cause every global warming advocate to reexamine their preconceived notions. Certainly the “science” of global warming has taken a severe body blow.

But the so-called mainstream media has largely ignored this scandal. Barbara Boxer and other liberals in Congress are attempting to distract attention away from the conduct of these conspiring climatologists by calling for the whistleblower to be criminally charged. Meanwhile, in a global warming hearing on the Hill, Obama administration officials said these emails do nothing to shake their resolve in the global warming hypothesis. (Never let a set of facts get in the way of a strong opinion, I suppose.)

In the meantime, we’ve been investigating some of the more dubious government responses to the global warming scare here. And Judicial Watch is preparing other document requests about this unfolding mega-scandal.

I’ll keep you updated.

Obama Administration to Fund ACORN Despite Funding Ban?

To fund or not to fund? That was the question regarding the disgraced community organization ACORN that we all thought was answered two months ago when Congress voted to deny ACORN all federal funding after the organization was caught red-handed trying to advise undercover reporters on how to evade tax, immigration, and child prostitution laws.

So why have the federal funding floodgates opened for ACORN once again?

According to The New York Times:

The Justice Department has concluded that the Obama administration can lawfully pay the community group Acorn for services provided under contracts signed before Congress banned the government from providing money to the group.

The department’s conclusion, laid out in a recently disclosed five-page memorandum from David Barron, the acting assistant attorney general for the Office of Legal Counsel, adds a new wrinkle to a sharp political debate over the antipoverty group’s activities and recent efforts to distance the government from it.

It was just over two months ago, on October 1, that President Obama signed into law a spending bill that included a provision that said no taxpayer money — including money authorized by previous legislation — could be “provided to” ACORN or its affiliates.

Seems like clear-cut language. But then the Justice Department got Clintonian in its interpretation.

Apparently, according to Barron, because the law signed by Obama specifically states that no government funds could be “provided to” ACORN, previous government ACORN contracts must be honored. Citing the dictionary in his legal memo, Barron said the term “provided to” refers to instances where government officials are making a discretionary choice whether to fund the organization or not, and not to instances where contracts have already been consummated. Had the statute simply said “expended,” or “obligated,” the reasoning goes, different story.

It appears the Obama Justice Department is bending over backwards to squeeze ACORN through this “loophole.”

And so, with the Obama Justice Department’s blessing, the federal government might continue to honor contracts it made with an organization that is alleged to have paid volunteers with crack cocaine, engaged in massive voter registration fraud, and used taxpayer dollars to get specific politicians elected to Congress (and the White House).

When the U.S. Census kicked ACORN to the curb and Congress appeared to de-fund the group a few months back many people thought the end of ACORN was near. But the organization has too many leftist friends in Congress and the Obama administration (including the President) to go quietly or quickly. And with more than 300 affiliates, ACORN’s complicated structure makes the group tough to pin down. Reporting suggests the organization is considering changing its name and has already transferred many of its assets to other front groups.

(Incidentally, click here to hear Rep. Darrell Issa, Ranking Member of the House Government Oversight Committee, talk in depth about ACORN’s structure and criminal activity. The congressman was a guest at a recent Judicial Watch educational panel discussing corruption in the Obama administration.)

Of course, Judicial Watch continues to investigate ACORN aggressively. Overall, we’ve filed more than two dozen Freedom of Information Act (FOIA) requests with various agencies.

Until next week…

Tom Fitton
President

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.