First, it claimed that allowing the lawsuit to proceed would result in the . . . → Read More: Obama’s fraudulent “sovereign immunity” legal argument]]> On April 3, late on a Friday afternoon, the Justice Department asked a judge to dismiss a lawsuit filed against the National Security Administration for unlawfully spying on Americans’ telephone records. In its brief, the Justice Department made two arguments:

First, it claimed that allowing the lawsuit to proceed would result in the disclosure of “state secrets.” This argument was disappointing, although not surprising. The Obama Justice Department had made that claim once before back in February, in response to a suit brought by victims of extraordinary rendition. In doing so, the Obama team was following the lead of the Bush administration, which made so many similar claims that candidate Obama criticized them as evidence of excessive government secrecy.

But its second argument was surprising: the Obama Justice Department argued that the government has “sovereign immunity” when it comes to domestic spying. That’s right, sovereign. Like the guy our founding fathers rebelled against for unreasonable searches and seizure of Americans’ property. In essence, the Justice Department was saying that Americans have no right to sue the government for alleged illegal surveillance.

Huh? What about the Fourth Amendment?

Realizing that the Obama honeymoon was definitely over, I went down to the Brady Briefing Room last Thursday to get some answers. This was my exchange with Press Secretary Robert Gibbs:

ME: Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance.

Does the President support the Justice Department’s positions in that case?

MR. GIBBS: Yes, absolutely. It’s the — absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.

ME: Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?

MR. GIBBS: No. I mean, obviously, we’re dealing with some suits, and the President will — and the Justice Department will make determinations based on protecting our national security.

Q So he still thinks that the Bush administration abused the state secrets privilege?

MR. GIBBS: Yes.

The state secrets issue is important, but what’s absolutely mind-blowing here is that, according to Mr. Gibbs, President Obama believes that citizens whose 4th amendment rights have been violated by the government have no legal recourse.

Which is completely wrong, of course.

As George Washington School of Law Professor Orin Kerr pointed out recently at the Volokh Conspiracy, section 2712 of chapter 121 of the Electronic Communications Privacy Act (ECPA) of 1986 is entitled “Civil actions against the United States.” It states that:

Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title…may commence an action in United States District Court against the United States to recover money damages.

It can’t get any clearer than that.

The Justice Department’s completely erroneous argument rests on a quotation taken out of context. The crux of their argument is this:

In the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707.

But if you read section 2520 (in chapter 119) and section 2707 (in chapter 121), it is readily apparent that the phrase “other than the United States” is there only because those sections specify penalties for when the law is violated by someone other than the United States (e.g., a state or local government). Section 2712, on the other hand, specifies penalties for violations of the law by the United States. The penalties are different in the two situations. And section 2712 explicitly applies to both chapters of the ECPA (the ECPA has two parts: chapters 119 and 121 of U.S. Code 18).

Hey Professor Obama. Somebody needs to go back to law school.

[Note: The preceding is the original, "raw" story I wrote and submitted last Thursday to Raw Story, who rewrote it and published it last Friday as White House: Obama 'absolutely' stands behind effort to throw out warrantless wiretapping suit.]

Starting in December 1967, McCain was held in a prison camp in northeast Hanoi that the prisoners referred to as “The Plantation.” In May of . . . → Read More: McCain’s miracle of the cross]]> According to John McCain, he was visited by a mysterious Christian North Vietnamese prison guard twice in 1969 and “often” thereafter. The timeline of these visitations is interesting.

Starting in December 1967, McCain was held in a prison camp in northeast Hanoi that the prisoners referred to as “The Plantation.” In May of 1969, McCain received his first visit from the saintly prison guard, as described in his May 14, 1973, article in US News and World Report, “John McCain, Prisoner of War: A First-Person Account”:

“It was also in May, 1969, that they wanted me to write—as I remember—a letter to U. S. pilots who were flying over North Vietnam asking them not to do it. I was being forced to stand up continuously—sometimes they’d make you stand up or sit on a stool for a long period of time. I’d stood up for a couple of days, with a respite only because one of the guards—the only real human being that I ever met over there—let me lie down for a couple of hours while he was on watch the middle of one night.”

McCain described this event slightly differently in his 1999 book Faith of My Fathers:

“After one difficult interrogation, I was left in the interrogation room for the night, tied in ropes. A gun guard, whom I had noticed before but had never spoken to, was working the night shift, 10:00 p.m. to 4 a.m. A short time after the interrogators had left me to ponder my bad attitude for the evening, this guard entered the room and silently, without looking at or smiling at me, loosened the ropes, and then he left me alone. A few minutes before his shift ended, he returned and tightened up the ropes.”

Later that year, McCain was moved to a different prison:

“In December of 1969 I was moved from “The Plantation” over to “Las Vegas.” “Las Vegas” was a small area of Hoala Prison which was built by the French in 1945. It was known as the “Hanoi Hilton” to Americans.” –John McCain, US News and World Report, May 14, 1973

In that 1973 article, McCain didn’t say whether the move to the Hanoi Hilton, which was located in downtown Hanoi, took place before or after Christmas. But since he received another wordless visitation from the secretly Christian communist prison guard on Christmas Day [a story curiously omitted from the aforementioned 23-page 12,000-word 1973 article], it makes more sense that he was transferred to the Hanoi Hilton during the week after Christmas:

“One Christmas, a few months after the gun guard had inexplicably come to my assistance during my long night in the interrogation room, I was standing in the dirt courtyard when I saw him approach me. He walked up and stood silently next to me. Again, he didn’t smile or look at me. He just stared at the ground in front of us. After a few moments had passed he rather nonchalantly used his sandaled foot to draw a cross in the dirt. We both stood wordlessly looking at the cross until, after a minute or two, he rubbed it out and walked away.” –Faith of My Fathers, 1999

Of course it’s possible that McCain’s transfer to the Hanoi Hilton occurred before Christmas, assuming that the secret Christian was transferred along with John. But would the Hanoi Hilton have a dirt courtyard?

Be that as it may, after this second visitation, McCain saw the secret Christian “often,” presumably after they were indeed both transferred to the Hanoi Hilton in December 1969, either before or after Christmas:

“I saw my good Samaritan often after the Christmas when we venerated the cross together. But he never said a word to me nor gave the slightest signal that he acknowledged my humanity.” –Faith of My Fathers, 1999

So what are the chances that a communist-but-secretly-Christian apparently low-level North Vietnamese prison guard with whom McCain never exchanged a word would have accompanied John in his move across town from The Plantation to the Hanoi Hilton?

I’d say it’s a miracle.

The slain man, Ali Abdul Hussein al-Maliki, was described . . . → Read More: Playing hardball in Iraq: did Bush throw Maliki a brushback pitch?]]> On Monday at the White House press briefing, Press Secretary Dana Perino declined to answer when I asked her whether the White House would apologize for last Friday’s raid by U.S. forces in Iraq that reportedly killed a relative of Iraqi Prime Minister Nouri al-Maliki.

The slain man, Ali Abdul Hussein al-Maliki, was described as the prime minister’s cousin in recent reports by McClatchy and the Washington Post. According to McClatchy, at the time of his death, the man was working as a security guard in a villa owned by the prime minister’s sister in Janaja, a town in Karbala Province. Responsibility for security in Karbala Province was supposedly handed over to the Iraqi government in October 2007, but Iraqi officials have claimed that last Friday’s raid was conducted without their knowledge or approval.

Here is my exchange with Ms. Perino:

Q U.S. forces in Iraq reportedly killed a relative of Iraqi Prime Minister Nouri al-Maliki during a raid last Friday on a villa belonging to the Prime Minister’s sister. The villa is in Karbala province, which is supposedly under full Iraqi control, and Iraqi officials said they were not informed about the raid in advance. Was that raid a mistake, and will you issue an apology?

MS. PERINO: I think you’ll need to call MNFI [Multi-National Force, Iraq]. I don’t have any information on that.

According to McClatchy, the U.S. military released a statement on Sunday that confirmed that coalition forces had shot and killed a man during what it described as an operation targeting “special groups” (a term it uses for Iranian-backed militant cells), and that the coalition forces learned only later that the man was a security guard. The U.S. statement continued: “Coalition forces deeply regret the loss of life and are conducting an investigation.”

The June 27 raid occurred at a sensitive point in negotiations of a Status of Forces Agreement between the U.S. and Iraq that will define the terms under which U.S. forces will operate in Iraq after a United Nations mandate expires in December 2008. Those negotiations, which began last January, have reportedly been deadlocked over disagreements concerning the extent of Iraqi sovereignty. Two weeks prior to the raid, on June 13, Prime Minister Maliki said:

“We have reached an impasse because when we opened these negotiations we did not realize that the US demands would so deeply affect Iraqi sovereignty, and this is something we can never accept. We cannot allow US forces to have the right to jail Iraqis or assume, alone, the responsibility of fighting against terrorism.”

That the U.S. would then proceed to unilaterally conduct a raid aimed at the prime minister’s family doesn’t bode well for the success of the Status of Forces Agreement negotiations. And neither does the fact that the White House won’t apologize.