Friday, May 29, 2009

Al-Haramain v. Obama: Trying to Restore the Rule of Law

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Several civil suits involving extraordinary rendition, torture, detention without charges, and warrantless surveillance are now making their way through Bay Area federal courts. Tea leaf readers of President Obama are carefully watching these cases, as the president navigates the legal land mines laid down by the Bush administration – and, so far, there have been few reasons for civil libertarians to feel the euphoria that they may have felt during the January 20 inaugural ceremonies, when Obama was hopefully ending eight years of Orwellian rule and restoring the nation to transparency and the rule of law.

In all the cases – Mohamed V. Jeppesen Dataplan, Inc., Al-Haramain v. Obama (sometimes referred to as v. Bush), Padilla v. Yoo, Hepting v. AT&T, and Jewel v. the National Security Agency –plaintiffs initiated their suits during the Bush administration. Under Bush, United States Department of Justice lawyers fought the cases on the basis of national security, denying the right of the plaintiffs to litigate based on the “state secrets” privilege. Lawyers in the Bush Justice Department were never able to kill any of the cases; yet lawyers for Obama Justice Department have continued to deny the right of the plaintiffs to sue, asserting, at a minimum, the same “state secrets” argument, and at worst, a new argument, “sovereign immunity.”

In this piece, I address Al-Haramain v. Obama.

Al-Haramain v. Obama: Warrantless Surveillance

In the Al-Haramain case, Wendell Belew and Asim Ghafoor – two lawyers for an Oregon branch of the Islamic foundation, which was suspected of having ties to terrorists – sued the Bush administration in February 2006 on the basis that the National Security Agency had spied on them and the foundation without warrants in March and April 2004, in violation of the 1978 Foreign Intelligence Surveillance Act (FISA). The lawyers and a third individual associated with the foundation (now defunct) learned that the government had been eavesdropping on their communications when the US Treasury Department, which was investigating its possible financial support of terrorist organizations, accidentally delivered a top-secret document to them in August 2004 that revealed the warrantless spying.

Based on the evidence revealed in the documents, Belew and Ghafoor got lawyers and sued. The case has been bouncing around to different courts, with Justice Department lawyers arguing consistently, under both Bush and Obama, according to San Francisco Chronicle reporter Bob Egelko in a May 22 story,

"… that courts have no power to decide the legality of the surveillance program unless the government acknowledges that it monitored a particular person or group. It has not done so in Al-Haramain's case."

Say what?

Truth Will Out

At this point, a lesson in early American/British law is in order. John Peter Zenger was put on trial in 1735 for publishing “false news and seditious libels.” Zenger was a New York printer, and among the works he printed was the first opposition paper in American history, including truthful satire that was not favorable to the governor of New York province at the time.

Prior to Zenger’s case, according to English barrister William Blackstone, writing several decades after the trial, “The provocation, and not the falsity, is the thing to be punished criminally.” However, Zenger’s lawyer, Andrew Hamilton, appealed to the jury on the basis of the fact that the information that Zenger had published was true and well known to be true.

“… Gentlemen of the Jury,” spoke Hamilton, “It is to you we must now appeal, for Witnesses, to the Truth of the Facts we have offered, and are denied the Liberty to prove … according to my Brief, the Facts which we are to prove were not committed in a Corner; they are notoriously known to be true; and therefore in your Justice lies our Safety.”

The jury acquitted Zenger (in fact, some historians say the jury practiced nullification), and while the acquittal was not a renunciation of the law, it set the stage for a remarkably free press – and the importance of the truth in settling cases.

Does ‘truth’ in the form of evidence play a role in Al-Haramain v. Obama?

The New York Times broke the story of warrantless wiretapping in a 2005, and George W. Bush and others have, perhaps foolishly, admitted to the practice, using the argument that the resolution passed by Congress on September 18, 2001 gave the president essentially a blank check to do whatever he needed to do to protect the country. So, like the facts in the case of John Peter Zenger, warrantless wiretapping is “notoriously known to be true.”

Nonetheless, the Justice Department has refused to give up the battle, despite that fact that it has not always been faring well in court.

For example, when the case landed in the courtroom of Judge Vaughn R. Walker of the US District Court for the Northern District of California in July 2008, Walker ruled that FISA preempts the state secrets privilege. The case could thus go forward. (In fact, counsel for the plaintiffs, Jon B. Eisenberg, in one of a series of commentaries he has written for, said that Walker’s ruling essentially makes a felon out of George W. Bush.)

Judge Walker also ruled at one point that the case could proceed without the documents in question as evidence -- which the Justice Department has called “top secret” -- as the plaintiffs had gathered enough other evidence for the case to proceed. But more recently, Judge Walker has ruled that the plaintiffs could use a copy of the document that was originally sent to them, which the plaintiffs’ lawyers destroyed long ago out of fear of prosecution. But now …

U.S. Department of Justice lawyers fight back

Justice Department lawyers are fighting back and refusing to cooperate with Judge Walker’s order to let the lawyers examine the document that they have already seen.

In early March, Eisenberg documented his troubles with the Obama Justice Department for, in which Obama’s lawyers appear to be challenging Walker’s orders in ways that seem headed for a showdown between the executive and judicial branches of the government.

On May 22, a frustrated Judge Walker ordered the Justice Department to tell him by Friday, May 29, just exactly why he should not rule that the plaintiffs have won their case by default.

As I sit at my computer now, on May 29, I await the response from the Justice Department and peruse Eisenberg’s memorandum that Judge Walker also ordered him to produce.

According to Eisenberg’s memorandum, the plaintiffs do not desire a summary judgment in their favor today or anytime soon. They'll settle for a summary judgment, but what they really want is their day in court – with or without the sealed document as evidence – and they want to challenge the government’s argument that the Authorization for Use of Military Force Against Terrorists, passed by Congress on September 18, 2001, gave the government a blank check to violate FISA and engage in warrantless wiretapping.

A hearing is scheduled in Judge Walker’s courtroom for Wednesday, June 3, at 2 pm.

Thursday, May 28, 2009

Playing the Numbers Game

The amended San Francisco Municipal Transportation Agency budget, adopted by the Board of Supervisors on May 27, 2009, impacts transit users more negatively than car drivers. The 38 Geary pulls up to a stop at 20th Avenue and Geary in the Richmond District.

On Wednesday, May 27 at a special meeting of the San Francisco Board of Supervisors to consider the San Francisco Municipal Transportation Agency budget, Board President David Chiu and MTA Executive Director Nat Ford threw numbers around like pinballs in a pinball machine, and at the end of the day, Chiu voted against his own measure to reject the San Francisco Municipal Transportation Agency budget. Again.

“I do not plan to vote to reject the budget,” Chiu said in chambers.

“I take this decision incredibly seriously. I’m the only one on the Board who does not have a car. I take Muni every day. … But we’ve come $30 million from where we were,” he said of the MTA budget that has variously been reported at $766 million, $776 million, $787.9 million – or any figure you care to toss out, as the last time anything was put out on the SFMTA press page was April 17 even though that was back in the Stone Ages of the budget discussions.

“We’ve come $30 million from where we were,” he said.

We did? Can I see that in writing?

Ford also made a surprise announcement at the meeting – a service enhancement memo worth $8.7 million in which the MTA agreed to put more service back into the system on the majority of bus routes that serve the largest number of people – the 9 San Bruno, the 14 Mission, the 47 Van Ness, the 38 Geary, the 44 O’Shaughnessy and others and to add 150 additional service hours (per week?).

“We clearly recognize that we’re a transit-first city,” said Ford.

We do?

To my knowledge, no one has seen that memo – and without that memo, his words and the words of the six supervisors who voted not to reject the budget are merely rhetoric.

There’s Nothing Here … Nothing at all

Despite the fact that no documents seemed available for the public – or members of the Board of Supervisors – to view, six out of five members on the board voted against Chiu’s motion to reject the budget, a motion that he himself had introduced at a San Francisco Board of Supervisors Budget and Finance Committee meeting on May 6.

As a result, starting on July 1, eight bus lines will be eliminated, route segments will be eliminated for another 14 lines, and bus frequency will be reduced on other lines. Fares will go up at the same time that service is being cut: adult fares will go from their current $1.50 to $2.00 per ride; monthly adult bus passes will go from their current $45 to $60 by January 1, 2010 – and pass users will have to fork out another $10 per month in order to use the passes on BART, the regional subway system; and passes for seniors, youth, and disabled riders will go up to $20 by January 1, 2010. Taxi service fees – such as the amount that drivers pay for their applications and the amount customers pay for rides – will also go up, as will parking fees in some city-owned garages and parking at metered curbside parking places.

It is the reduction in transit service at the same time that fares are increasing – especially when the fee increases for car drivers are four times less burdensome than those for transit uses, according to staff at the MTA – that triggered opposition from five members of the Board of Supervisors.

“I acknowledge the fine attempts by my colleagues here at the board, but a stronger message needs to be sent out about climate change,” said Supervisor Ross Mirkarimi when announcing that he would vote for the motion to reject. “It’s also counterintuitive to allow an MTA budget that does more to inhibit ridership with fare increases and reduced service.”

“We gave the MTA a week to get some changes in the budget,” said Supervisor John Avalos, the chair of the Budget and Finance Committee. “But this budget disproportionately affects riders over drivers. … There’s nothing here. Nothing at all.”

And that $30 million?

When questioned about the $30 million in the corridor of City Hall, Supervisor Chiu’s legislative aide David Noyola, and MTA media spokesman Judson True, broke down the $30 million this way:

 $15 million in renegotiated work orders with other departments such as the San Francisco Police Department;
 $10.3 million in the givebacks negotiated on May 12; and,
 $5 million in projected future revenues from parking fees

But where’s the document -- signed and sealed -- that will guarantee this $30 million giveback?

The Process

The supervisors were continuing a budget process that started earlier in the spring when the MTA announced a budget deficit of $128.9 million. At that point, the seven-member MTA Board of Directors, and staff of the transportation agency – which manages both mass transit, taxis, and parking – began work to amend the two-year budget that had been adopted the previous year.

Transportation agency staffers had presented a budget to the directors – all mayoral appointees – on April 30 that included many of the items that members of the Board of Supervisors voted for on May 27 – with one addition: a proposal to start charging for parking at metered curbside parking spots on Sundays and on weekdays from 6 to 10 pm.

But under pressure from Supervisors Carmen Chu and Bevan Dufty and Mayor/Candidate for California Governor Gavin Newsom – the Chair of the MTA Board Tom Nolan introduced an amendment to excise the new parking policy proposal. The amended budget passed six to one.
That was a loss of $9 million that could have been used to restore service, a member of the public pointed out.

To make up for the loss of revenue from parking meters, Ford and his staff said they would work to renegotiate the work orders that the MTA has with other departments such as the San Francisco Police Department. In the case of the SFPD, every time an on-duty police officer boards a bus or drives by a Muni yard to check for intruders, the MTA is billed. It is also billed for 311 service calls that are related to Muni.

The budget made several stops between April 30 and May 27. On May 6 it went to the Board of Supervisors Budget and Finance Committee where Chiu introduced his original motion to reject the budget. It passed out of committee on a vote of four to one. On May 12, it went the full 11-member Board of Supervisors, and during that meeting Supervisor Carmen Chu helped negotiate a $10.3 million giveback that included only a promise to study expanding parking enforcement, a slight reduction in the work orders, and a memorandum of understanding between the SFPD and the MTA over work orders to be signed within the next 24 hours.

Not good enough: five supervisors voted to reject the budget – two short of the required seven. Still, three of the five who voted to reject the budget were on the Budget and Finance Committee where the item was still agendized for a meeting the following day. And there, those three supervisors – John Avalos, David Campos, and Ross Mirkarimi – revived the matter and sent it on back to the full board for another round. On May 19, the board voted seven to four to continue the item until a special meeting scheduled for May 27.

And on May 27 this is how they voted:

District One, Eric Mar – Aye
District Two, Michela Alioto-Pier – No
District Three, David Chiu – No
District Four, Carmen Chu – No
District Five, Ross Mirkarimi – Aye
District Six, Chris Daly – Aye
District Seven, Sean Elsbernd – No
District Eight, Bevan Dufty – No
District Nine, David Campos – Aye
District Ten, Sophie Maxwell – No
District Eleven, John Avalos – Aye

That MOU to be signed within 24 hours after the May 12 meeting? Nowhere to be seen according to one of the five supervisors who voted to reject the budget.

Thursday, May 21, 2009

Will Muni Be Thrown Under the Bus?

Muni riders on the 47 bus, one of the more infrequent buses that is usually at capacity when I board it.

Here's a quick update on everything that has gone down with the San Francisco Municipal Transportation Agency budget at the level of the San Francisco Board of Supervisors:

At the May 12 Board of Supervisors meeting, the supervisors, MTA staffers, and Mayor Gavin Newsom engaged in last minute negotiations to reduce some fare hikes to Muni. The supervisors ended up getting a giveback of $10.3 million out of a total budget that has been reported in the news as $784 million, $766 million, and $778.8 million with a deficit of $128.9 million ...

Item 8 was Supervisor David Chiu's original motion to reject the MTA budget. But because of the negotiations, Chiu, apparently satisfied with the givebacks, made a motion to table his previous motion -- and that second motion passed six to five.

I was sitting in the chamber taking notes when MTA Executive Director Nat Ford presented the details of the givebacks. At first I was sort of euphoric -- but then realized that there had been no analysis of the givebacks, and in the end, five members of the Board (Eric Mar, Ross Mirkarimi, Chris Daly, David Campos, and John Avalos) voted against the motion to table the motion to reject the budget.

And then the reporters, pundits, and one pissed-off commentator (me) got busy ...

Supervisors Vote 6 to 5 Against Rejecting the MTA Budget
SF Streetsblog

SF board makes deal on Muni budget
SF Gate

'They Didn't Do Shit' ...
SF Appeal

Fear of Newsom Petulance Causes Bad Muni Budget
Beyond Chron

The One Day Muni Negotiations
Melissa Griffin

Board decides not the reject Muni budget
SF Examiner

Board restores some Muni service, but Newsom gets his fare hike
San Francisco Bay Guardian

Say It Ain't So, Chiu
Fog City Journal

Sophie's Choice
SF Weekly

John Avalos, the Pied Piper of Polk Street
SF Citizen

A San Francisco Parking Enforcement Debate That Shouldn't Be Happening
SF Streetsblog

Stay Tuned: MUNI & Me
Fog City Journal

Fortunately, three of the five supervisors who voted against the motion to table the motion to reject the budget serve on the Budget and Finance Committee (Avalos, Campos, and Mirkarimi) -- which was meeting the following day. The motion to reject the MTA budget was still on the Budget and Finance agenda, and they revived it there, sending it back to the full Board of Supervisors.

Within the next few days, Supervisor John Avalos got cracking, and working with Executive Director Nat Ford, Irwin Lum of Transport Workers United, Manish Champsee of Walk San Francisco, Leah Shahum of the San Francisco Bicycle Coalition, BART Board Director Tom Radulovich (also of Livable City), Pi Ra of Senior Action Network, and others, he came up with a much different budget that restores some bus service to low-income neighborhoods, lowers planned fare hikes for seniors, youth, and disabled riders, and expands the hours of operation of metered parking spots in some neighborhoods of the city.

Supervisor John Avalos confers with MTA Executive Director Nat Ford on Monday, May 18.

At the next Board of Supervisors meeting, on May 19, supervisors voted seven to four (Ayes: Eric Mar, David Chiu, Ross Mirkarimi, Chris Daly, David Campos, Sophie Maxwell, and John Avalos; Noes: Michela Alioto-Pier, Carmen Chu, Sean Elsbernd, and Bevan Dufty) to continue the measure to a special Board of Supervisors meeting on Wednesday, May 27, at 12 noon.

We'll see what happens on May 27. Will any of the seven supervisors -- the number required by City Charter to reject the MTA budget -- fold, no doubt under pressure from the mayor, and throw Muni under the bus?

Saturday, May 9, 2009

Update on the SFMTA Budget Struggle

San Francisco Board of Supervisors President David Chiu, who does not own a car, introduced a motion to reject the San Francisco Municipal Transportation Agency budget after the April 30 SFMTA Board of Directors vote. This motion was heard at the Budget and Finance Committee on Wednesday, May 6, 2009. His measure passed, four to one, and has been forwarded onto the full board, where it will be heard on Tuesday, May 12. It is expected to pass there, as Chiu has six co-sponsors, and seven out of 11 supervisors are needed to reject the SFMTA budget. SFMTA staff will then be back at Budget and Finance on May 13.

However, according to our city charter, the SFMTA staff is under no obligation to redo the budget and come back with something more acceptable to the supervisors. And right now there is a struggle going on between the supervisors and the mayor, who is running for governor of California. As much as the staff want to produce a different budget -- and from all accounts, staff people do -- they are under pressure from the mayor. If the SFMTA does not produce a new budget, it could operate under the status quo, draining funds from our dwindling general fund -- or, according to Aaron Peskin, former president of the SF Board of Supervisors, the supervisors themselves could redo the SFMTA budget. David Chiu, thankfully, seems at this point to be working very diplomatically with the beleaguered staffers at the SFMTA.

Here are links to recent stories about the SFMTA budget crisis:

Arnold and Gavin: Using the Deficit to Scare Us; Beyond Chron, May 11, 2009

Tuesday Showdowns on Muni and JROTC; Beyond Chron, May 11, 2009

Supes Committee Votes to Recommend Rejection of MTA Budget; SF Streetsblog, May 11, 2009

Supervisors aim to change Muni budget; SF Chronicle, May 7, 2009

Supervisors seem primed to reject Muni budget; SF Bay Guardian, May 7, 2009

Monday, May 4, 2009

Muni First!

Students wait at a bus stop at the corner of Presidio and Jackson in San Francisco's Pacific Heights neighborhood.

Times are tough all over, and San Francisco's Municipal Transportation Agency is feeling the pinch, as are our Department of Public Health and other municipal departments. It's times like these that reveal the true color of politicians as they attempt to scramble up the public office ladder -- and Mayor Gavin Newsom, running for governor on a legacy as a "green transportation" mayor, has just failed a huge test.

After all, global climate change, natural resource wars, and the end of cheap energy are all coming to head right now, and internationally, nationally, and locally, this is a time when truly great leaders could be emerging and leading us all to new ways, instead of perpetuating old, unsustainable ways.

All Politics Is Local ...

San Franciscans have known for weeks that the SFMTA, which oversees our buses, light rail, taxis, and parking, was facing a deficit of $128.9 million, out of annual operating expenses somewhere in the neighborhood of $800 million plus. The solution? The SFMTA staff presented a budget to seven members of the SFMTA Board of Directors on April 30 that proposed raising fares and parking fees, and cutting Muni service and jobs.

But at the April 30 meeting, at one of the most opportune times to help shift people out of their cars and into buses and onto sidewalks and buses, directors -- all appointed by the mayor -- did not adopt the budget that staff had presented to them. Instead, Board Chairman Tom Nolan proposed amending the budget to eliminate staff proposals to start charging parking fees at metered parking spaces on Sundays and until 10 pm on weekdays -- and directors voted for the amended budget, six to one. (Even the SF Chamber of Commerce, normally about as car-friendly and eco-unfriendly as they come -- endorsed the proposal to charge for parking on Sundays and after hours on weeknights!) The directors are Tom Nolan, The Rev. Dr. James McCray, Jr., Cameron Beach, Shirley Breyer Black, Malcolm Heinicke, Jerry Lee, and Bruce Oka. McCray was the lone dissenting voice.

"We just lost a $9 million opportunity to restore service, and I'm not pleased," remarked Paul Hogarth of the Tenderloin Housing Clinic in public testimony about the amendment.

When I asked Nolan about the amendment and his vote after the meeting, he said, "In making rounds to some of the supervisors offices, it became clear that this was very important to them. Supervisor Carmen Chu in particular -- she didn't like the idea of enforcing parking out in the avenues in merchant areas next to residential neighborhoods." When asked, he said that the mayor's office was also in support of eliminating Sunday and after hours parking enforcement.

But clearly the mayor found a way to shift the onus of this amendment away from him and onto a couple of supervisors, one of whom will be named in subsequent publications of SF Streetsblog.

The budget -- which includes one-way fare increases from $1.50 to $2.00, monthly pass increases from $45 to $55 in July and then to $60 in January 2010, the elimination of about eight bus lines, the increase in head time between buses running on other lines, a 50 cent hourly across the board increase at all parking meters from 9 am to 6 pm, and increases in hourly and daily (but not monthy) rates at city-owned parking garages -- now goes to the San Francisco Board of Supervisors.

Board President David Chiu, however, has introduced a measure to reject the budget, and activists are out there organizing in support of his motion. His motion will be heard at the Budget and Finance Committee hearing on Wednesday, May 6. That hearing starts at 1:30 pm and will be held in Room 263 of San Francisco's City Hall and some of us are busily getting the word out that people need to turn out -- or at the very least send emails to supervisors -- in support of Chiu's motion:

We are, after all, a transit-first city -- and that's written into our city charter.