Supremes To Decide Whether Cheney’s Orders In A 2006 Vail “Retaliatory” Arrest Violated First Amendment

Per the consummate SCOTUS watcher, Lyle Denniston, and the authoritative SCOTUS Blog — a bit:

. . . .Taking on a case that grew out of a citizen’s arrest after he made an anti-war remark and jostled then-Vice President Richard Cheney, the Supreme Court agreed Monday to sort out when an arrest is invalid because it may have been carried out in retaliation for the exercise of free-speech rights. Two Secret Service agents, seeking to head off a civil rights lawsuit against them, argue that they had a valid reason for arresting a Colorado man in 2006, so he has no First Amendment claim. . . .

The Secret Service case will be decided by an eight-member Court, since Justice Elena Kagan took herself out of the case, presumably because she had had some contact with it in her former position as Solicitor General. The case is likely to be set for argument in the March or April sittings. At issue is a ruling by the Tenth Circuit Court, based in Denver, that denied legal immunity to the agents because, it said, the law was clear that law enforcement officers may not arrest an individual who has exercised First Amendment rights. The fact that the agents had “probable cause” to make the arrest did not overcome the individual’s free-speech rights, the Circuit Court ruled.

The case will require the Court to sort out the impact on the case of its own ruling in 2006, in the case of Hartman v. Moore. In that case, the Court said that, if there is probable cause sufficient to justify filing charges, then that neutralizes a claim that the prosecution was started in retaliation for criticizing a public official or agency. In the new Secret Service agents’ case, the Tenth Circuit said that precedent only dealt with retaliatory prosecution, not retaliatory arrest. The federal Circuit Courts are split on that last point, and that division is apparently what led the Supreme Court to step in. . . .

We will keep you posted, come March 2012 — linking the oral argument .mp3 files (I love how easy this has all become, in the ensuing years — since I started covering this case, in early 2006!). Here is the order (a 2 page PDF file) directing the Colorado District Court to send the trial records up to the Supremes, for review.

May 18, 2011 — Next Cheney Colorado Court Date

We will keep an eye on this — as this will ultimately lead to a ruling ordering Dick Cheney, now a retiree, with plenty of free time on his hands, to sit for a deposition, under oath, about his actions on that March day in 2006, in Beaver Creek — during which Mr. Howards was arrested, and held for 24 hours, for simply expressing his views on the war in Iraq.

See below — from the United States District Court, in Denver:

MINUTE ORDER
ORDER ENTERED BY
MAGISTRATE JUDGE CRAIG B. SHAFFER

. . .In light of the March 14, 2011 judgment of the United States Court of Appeals for the Tenth Circuit (doc # 214) partially remanding this action, IT IS HEREBY ORDERED that the court shall hold a Status Conference in this matter on May 18, 2011 at 9:15 a.m. (Mountain Time) in Courtroom A-402, Fourth Floor, of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. . .

DATED: March 30, 2011

Do stay tuned, right here.

Dick Cheney’s Epilogue: Yet ANOTHER Step Closer To Being Deposed In Colorado !st Amendment Case

Here’s a belated St. Patrick’s Day present — if Dick Cheney lives long enough to be deposed. This opinion was handed down on March 14, 2011 (a 42 page PDF file — 136 kbs).

And so, the day when Dick Cheney will be deposed, and asked under oath, what he did that day in 2006, in Beaver Creek, Colorado, to have Steven Howards arrested for his simple, and first amendment protected act of “petitioning his government, for the redress of his greivances“, draws nearer.

The interlocotory appeal, seeking a summary dismissal of Mr. Howards’ case, has been denied — his first amendment claim may go forward; thus he may depose Dick Cheney.

. . . .Steven Howards brought the present action alleging, inter alia, that defendants Secret Service Agents unlawfully arrested him in violation of his First and Fourth Amendment rights. Defendants moved for summary judgment on the basis that they were immune from suit. Following a hearing on the merits, the district court concluded fact issues precluded the grant of qualified immunity as well as summary judgment. The case is now before us on defendants’
interlocutory appeal from the district court’s denial of their motion for qualified
immunity. . . .

Prior to Hartman, the law on retaliatory arrests was clear in the Tenth Circuit. See DeLoach, 922 F.2d at 620; see also Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (relying on DeLoach and explaining “the existence of probable cause is not determinative of the constitutional question if. . . the plaintiff was arrested in retaliation for his having engaged in constitutionally protected speech”). Hartman did nothing to disturb this law. The fact that some of our sister circuits disagree with us on this issue does not bind us, nor does it force us to find the law was no longer clearly established in this circuit. See Garcia, 817 F.2d at 658.

It is well established that an act which is lawful under the Fourth Amendment may still violate other provisions of the Constitution. For example, in Whren v. United States, 517 U.S. 806, 809 (1996), the Court considered whether a traffic stop that was supported by probable cause could violate the Fourth Amendment when the reason for the stop was pretextual. The two black male defendants were arrested for possessing illegal drugs after their car was stopped by vice officers in a “high drug area.” Id. at 808. The defendants conceded the police had probable cause to believe that they had violated local traffic laws, but argued the traffic stop nonetheless should be held unreasonable under the Fourth Amendment, because the stop was pretextual and no reasonable officer would have stopped them for those traffic violations. . . .

Based on the record here, and in the absence of any argument from Agents Reichle and Doyle that Mr. Howards failed to present evidence to establish a First Amendment violation, see Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009), we conclude the district court correctly denied these Agents’ motion for qualified immunity on Mr. Howards’ First Amendment claim for retaliatory arrest. . . .

Indeed. Now Mr. Howards will be able to seek answers from Mr. Cheney about his role in ordering Howards’ arrest. Perfect. Do stay tuned.

Guardian, On CableGate Documents: In The NYT, And The Guardian

I think Simon Jenkins has it just right, tonight, for The Guardian — do go read it all, but here is a bit:

. . .America’s foreign policy is revealed as a slave to rightwing drift, terrified of a bomb exploding abroad or of a pro-Israeli congressman at home. If the cables tell of the progress to war over Iran or Pakistan or Gaza or Yemen, their revelation might help debate the inanity of policies which, as Patterson says, seem to be leading in just that direction. Perhaps we can now see how catastrophe unfolds when there is time to avert it, rather than having to await a Chilcot report after the event. If that is not in the public’s interest, I fail to see what is.

Clearly, it is for governments, not journalists, to protect public secrets. Were there some overriding national jeopardy in revealing them, greater restraint might be in order. There is no such overriding jeopardy, except from the policies themselves as revealed. Where it is doing the right thing, a great power should be robust against embarrassment. . .

Indeed.

now two years on, dick cheney looks very frail. . .

I am simply astonished by how
frail, and decrepit Dick Cheney looks. Compare
2010 edition — with 2006 editions:

That is all.

Be excellent to one another; for if you
don’t — one day, this may be your fate.

92,000 Pages — And Counting — As “The Truth” Outs, On Mr. Cheney’s Miscues

In the coming hours, days and weeks, many other writers will, no doubt, do a better job than this of connecting the WikiLeaks trove to misleading statements by Dick Cheney, and George W. Bush. But in a bit of flash analysis, I found these passages from one of The New York Times‘ stories tonight worthy of highlight:

. . .The Central Intelligence Agency has expanded paramilitary operations inside Afghanistan. The units launch ambushes, order airstrikes and conduct night raids. From 2001 to 2008, the C.I.A. paid the budget of Afghanistan’s spy agency and ran it as a virtual subsidiary.

Over all, the documents do not contradict official accounts of the war. But in some cases the documents show that the American military made misleading public statements — attributing the downing of a helicopter to conventional weapons instead of heat-seeking missiles or giving Afghans credit for missions carried out by Special Operations commandos. . .

Mr. Cheney, I think you will find that these documents — as much as, or more than any others yet released — paint your wilful refusal to engage in Afganistan as one of the 21^st Century’s greatest military miscalculations. One that has cost tens of thousands of lives (civilian and military), and nearly a trillion dollars.

I do pray theat your LVAS keeps working — and working well. You need to read the papers, here, in Germany and in the United Kingdom, for the next few weeks and months. Only then will you have the beginnings of an accurate sense of how history is actually going to capture your endless hubris, and highly-lethal ineptitude.

I Hope Mr. Cheney’s Heart Fully-Recovers. . . I Truly Do.

My disagreements with Dick Cheney are — and have always been — about matters evincing his lack of ethical and moral governing principles. That said, those bloggers who are making “zombie” jokes, about the fact — as reported in the Los Angeles Times — that Mr. Cheney no longer has a pulse, nor blood pressure (in the conventional sense) seem to me to miss the mark. Aside from the cruelty of such remarks (and the notion that we ought to demonstrate that we are not guilty of the very same conduct we demonized, in him), I think there truly is a benefit here — should Mr. Cheney fully-recover — for posterity. And justice.

No matter how much I disagree with the man, I do not wish death upon him. No, I want him to live into ripe old age, so that he may read, with his own eyes, how history judges his decisions — almost uniformly — as abject failures, on all fronts. In short, now — with the benefit of hindsight — I wish that the sentence for his crimes would be that he would actually live to see how history judges him. He has repeatedly said that history will look favorably on his decisions — I can think of no more fitting punishment, then than that he will go into Eternity knowing that history has weighed him, and found him decidedly. . . wanting.

Cheney May Well Have Endangered NYC Subway Riders — All For A 2006 Poll Booster, No Less!

As ever, EW has the goods on Dick — do go read it all, at that link:

. . .authorities claim to have killed Rauf (and Saleh al-Somali) with two separate drone strikes in late 2008. But it remains unclear whether Rauf actually died in that 2008 strike.

So he may still be out there, because Dick Cheney wanted to boost Bush’s [2006] poll ratings rather than let the Brits develop their case and extradite Rauf into secure custody in 2006.

I’ve been wondering since Zazi was arrested why the right-wingers don’t want to talk about him at all, ignoring the Zazi case to instead squawk about the underwear bomber. I’m beginning to wonder if this is the reason: Dick Cheney’s refusal to let law enforcement work four years ago exposed us to at least three more years of Rauf’s plotting.

A bunch of NY subway riders may have almost gotten killed last September 11 because Dick Cheney wanted to boost poll numbers in 2006 rather than let law enforcement work.

Sickening.

Dick Cheney: As Your Blowhard Uncle (Ne’er Do-Well Version)

Dick Cheney may be the most pungent former political hack this nation has ever known. I guess he still doesn’t see that over seven years of his assinine policies are the reason we are where we are now. Actually, the truth is that he knows he is the cause of this mess — and he is seeking to rewrite his personal history, via churlish grandstanding.

We’d all do well to simply ignore this old man’s blather. He is sort of like the blowhard uncle who shows up at Christmas-time, claiming to be all sorts of things he’s not. It would be be simply silly, rather than sad, if Dick didn’t still have loyal “leave-behinds” inside the intel community, feeding him classified information — and thus commiting acts of treason. [He is no longer entitled to receive classified information -- not without the specific approval of the current White House. I can guarantee you that permission has not been granted.]

From the New York Daily News, then:

. . .Pfeiffer went further, saying that it was the Bush-Cheney focus on Iraq that led to Al Qaeda’s strengthened presence in Afghanistan and Pakistan and that President Obama is now making America safer by employing a strategy that focuses more resources on Afghanistan.

“To put it simply: This President is not interested in bellicose rhetoric. He is focused on action,” Pffiefer wrote. “Seven years of bellicose rhetoric failed to reduce the threat from Al Qaeda and succeeded in dividing this country. And it seems strangely off-key now, at a time when our country is under attack, for the architect of those policies to be attacking the President. . .

Indeed.

Here’s to hoping that Dick Cheney will learn to keep his very own prior counsel (to others, in 2002 through 2008), in the coming year of 2010, and finally. . . STFU.

More Transparent Lies, Direct From Dick Cheney’s Handwriting. . .

First, note that the image, at right — of Dick Cheney’s forehead — contains his own handwritten notes, about U.S. Ambassador Joe Wilson, made in the margins of a July 6, 2003 New York Times opinion piece he read on his way back from Jackson Hole, Wyoming — to Washington, DC. The opinion explained — in detail — what Ambassador Wilson didn’t find while looking for evidence of any Nigerian-to-Iraqi yellowcake trading. Here it is, in context:

Now click the image below:

So, when asked about all of this, by the FBI Special Agent, a little less than one year later — Dick Cheney could not at first recall whether he and Scooter Libby had ever discussed Joe Wilson’s trip as “a junket“. All sources put Scooter Libby with Dick Cheney, in Jackson Hole on that July 4 weekend. What are the odds that — if Dick Cheney took the time to make a note — in his own hand, thus: “Did his wife [Valerie Plame] send him [Wilson] on a junket?“, on the plane back to DC, that day, that he didn’t already know Plame was CIA, and that Joe Wilson had “outed” one of the central lies embedded in the 16 words? [Later, perhaps recalling his handwritten notes, Cheney allows that it is "possible" he and Scooter discussed the trip, as a junket or boondoggle.]

It seems unfathomable, that such a sharp political mind as Mr. Cheney is reputed to possess, would have made an entirely trivial note on Air Force Two, then done nothing about it — and in fact, forgotten it entirely, for almost a year. But, in order to decide that Mr. Cheney was not at least winking and nodding in the director of Scooter Libby, about Valerie Plame and Joe Wilson — we must assume just that unlikely set of occurences. That he wrote the note for no reason, watched the ensuing debacle unfold — about the falsity of the 16 words. . . and never pursued any method to blunt the impact of these highly-damaging revelations. Go figure.

Moreover, what are the odds that he would not have tasked Scooter Libby with throwing up a fog of disinformation, to cover the Veep’s (and, potentially, the President’s) tracks — about the clear-falsity of the 16 words in the President’s State of the Union address — words used to begin the war in Iraq?

Slim to none. Slim — to none. Let’s talk to Eric Holder about a special prosecutor, again. Related: Do go read the Atlantic Wire blog piece — on these developments.

UPDATED: Read Marcy Wheeler’s latest, thus:

. . .Cheney was publicly implying that he would have had the authority to declassify Plame’s identity. Perhaps this was just an attempt to make people ignore inquiries like mine. But it’s just as likely that when Cheney realized that Libby had testified he had ordered Libby to leak stuff to Judy Miller (this happened the same weekend Cheney shot an old man in the face!), he wanted to give Libby the impression that his own testimony protected Libby from an IIPA violation.

But it didn’t. Judy’s unreliable testimony saved Libby. But without that, Cheney’s own testimony would have been the evidence Fitzgerald would have needed to charge Libby with deliberately outing a CIA spy. . .