. . . .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.

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.

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.

. . .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.

That is all.

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

. . .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.

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.

. . .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.

. . .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.

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. . .

From the FBI’s May 2004 Inteview Notes, regarding an interview of Dick Cheney, then-sitting Vice President of the United States [click image to enlarge]:

Note that these “lack of recollections” are at variance with every other piece of evidence gathered, and then presented to the jury — in Scooter Libby’s perjury and obstruction of justice trial.

It is time to indict this man. There is little doubt that the above passage reflects a very carefully-couched set of lies — about when and how Dick Cheney first learned of Valerie Plame’s role at CIA; and thus covers his likely hand in having her outed — in retribution for Joe Wilson’s work debunking Niger yellowcake to Iraq stories as fabrications. Of course, those fabricated stories were a large part of the justification offered, by this Vice President, and Bush43, for our military engagment in Iraq.

just go read marcy wheeler, on it.

now.

. . .One of the most sensitive areas has been what we do in friendly countries that don’t want to co-operate or maybe we don’t have enough confidence to entrust them with information. If you have an al-Qaida guy wandering around certain bits of the world we might decide that we need to deal with that ourselves, directly, without making a lot of noise,” he said. “There was a plan to deal with that. It was much talked about in the CIA and the military had its own operation.”

Another former senior intelligence official responsible for dealing with al-Qaida said that assassination plans were reined in after similar covert operations by the military were botched and proved to be embarrassing, particularly the killing in Kenya. He did not give details of the operation. . .

There appears to be common agreement among knowledgeable former intelligence officials that the controversy goes beyond the immediate question of assassination and capture of al-Qaida operatives. . .

Quick — who did we kill, and badly, in Kenya? Any guesses? A two second Google search turns up this coverage, in The New York Times:

. . .Neither of the opposition lawmakers killed this week [February 1, 2008] was especially prominent. Both were just weeks into their new jobs as national politicians. Opposition leaders, however, say that is not the point. The opposition holds a slight edge in Parliament, and its leaders contend that the government is trying to reduce their numbers, an accusation it denies.

On Tuesday, Melitus Mugabe Were, a lawmaker and businessman who grew up in a slum, was shot to death in his driveway by two gunmen. The police are closely investigating the killing, but Mr. Were’s friends and family say he was not robbed and that the killing was a professional hit. . .

As ever, there will be more, on this — and that, as it is now reported, by Scott Shane, that then-CIA Director Hayden ordered the secret program scaled back, after he first learned of it, in the Spring of 2008.

That would be only several weeks after this “professioanl hit” — in Kenya.

By the way, neither of the dead Kenyan legislators had any known ties to Al Qaeda. [Which, sadly again, echos a sub-plot of the first installment of the Bourne trilogy -- the (first-failed, then ultimately completed) killing of a Sub-Sarahan African reformer, named Nykwana Wombosi (played by Adewale Akinnuoye-Agbaje). I do not mean to trivialize this, but it is possible that Cheney's evil is just this banal -- to follow, and closely, some impluasible movie script.]

. . .The program was designed in the frantic weeks after the Sept. 11 attacks when President Bush signed a secret order authorizing the C.I.A. to capture or kill Qaeda operatives around the world. To be able to kill Osama bin Laden or his top deputies wherever they might be — even in cities or countries far from a war zone — struck top officials as an urgent goal, according to people involved in the discussions.

But in practice, creating and training the teams proved to be difficult.

“It sounds great in the movies, but when you try to do it it’s not that easy,” said one former intelligence official. “Where do you base them? What do they look like? Are they going to be sitting around at headquarters on 24-hour alert waiting to be called?”. . .

But Congressional Democrats were furious that the program had not been shared with the committees. The Senate and House oversight committees had been created by law in the 1970s as a direct response to disclosures of C.I.A. abuses, notably including assassination plots against Patrice Lumumba in the Congo, Fidel Castro in Cuba, and other foreign politicians. In addition, President Gerald Ford in 1976 issued an executive order banning assassinations.

But the ban does not apply to the killing of enemies in a war. . . [And, apparently, Bush took that position.]

Hina Shamsi, an adviser to the Project on Extrajudicial Execution at New York University, said such a calculation about inserting a kill team would include the violation of the sovereignty of the country where the killing occurred; the different legal status of the C.I.A. by comparison with the uniformed military; and whether the killing would be covered by the law of war.

“The issue is a complex one under international law, and it encompasses all of the contentious issues of the years since 2001,” Ms. Shamsi said. . .

Wow. I hate being right, all the time — about the Dick. I really do.

. . .capture or kill al Qaeda operatives, according to former intelligence officials familiar with the matter. . .

[However:]

. . .In 2001, the CIA also examined the subject of targeted assassinations of al Qaeda leaders, according to three former intelligence officials. It appears that those discussions tapered off within six months. It isn’t clear whether they were an early part of the CIA initiative that Mr. Panetta stopped. . .

So, the Republican defense tactic here, will be to “dress it up” — as a program to carry out a presidential directive.

One would think that CIA Director Panetta would have asked whether the program was pursuant to a presidential order, or finding, before briefing Congress, in late June.

So — I suspect — the actual “Blackbriar/Treadstone” project Cheney kept under wraps for eight years, will turn out to be something else. Something broader, or more specific — but not something that Bush had ordered be carried out, with specificity.

That’s my guess.

~~~~~~~~~~~~~~~~~

* In this scene from the second installment of the “Bourne” trilogy — depicted, above (click to enlarge) — Jason Bourne (armed with nothing but a tape recorder) extracts a confession (about unauthorized assassinations of international political leaders), from his CIA branch chief.

. . .The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday. . .

The law requires the president to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.” But the language of the statute, the amended National Security Act of 1947, leaves some leeway for judgment, saying such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.”

In addition, for covert action programs, a particularly secret category in which the role of the United States is hidden, the law says that briefings can be limited to the so-called Gang of Eight, consisting of the Republican and Democratic leaders of both houses of Congress and of their intelligence committees.

The disclosure about Mr. Cheney’s role in the unidentified C.I.A. program comes a day after an inspector general’s report underscored the central role of the former vice president’s office in restricting to a small circle of officials knowledge of the National Security Agency’s program of eavesdropping without warrants, a degree of secrecy that the report concluded hurt the effectiveness of the counterterrorism surveillance effort. . .

A report released on Friday . . . makes clear that Mr. Cheney’s legal adviser, David S. Addington, had to personally approve every government official who was told about the program. The report said “the exceptionally compartmented nature of the program” frustrated F.B.I. agents who were assigned to follow up on tips it turned up.

High-level N.S.A. officials who were responsible for ensuring that the surveillance program was legal, including the agency’s inspector general and general counsel, were not permitted by Mr. Cheney’s office to read the Justice Department opinion that found the eavesdropping legal, several officials said. . .

I am truly hopeful, again, that Eric Holder will take aim directly at Dick Cheney’s lawlessness.

This article reads almost like a Bourne movie “BlackBriar Project” file (click at right to enlarge image).

Disgusting. But nothing we didn’t already know — at least those of us who’ve followed it closely for the last four-plus years.

UPDATED @ 11:00 PM EDT:

The Los Angeles Times is running CIA quotes calling agency proponents would-be “Jason Bourne” types:

. . .Some former high-level CIA officials said they remained puzzled about which program could be at the center of the budding controversy.

“A lot of people thought they were Jason Bourne and came up with ideas,” said a former senior CIA officer, referring to the fictional super-spy. “There were programs that were kind of wild that were considered in 2001. . .”

It would all be rather droll, if we hadn’t tortured people over stuff like this; and lied our way into a quagmire in Iraq over it, as well.

steven howards won an important set
of victories, in court, today. the dickster
(cheney) will likely be feelin’ a pinch, tonight.

earlier, the court had granted howards
the right to take former vice-president
cheney’s deposition — today’s order allows
howards’ lawyers ample time to get that scheduled
and completed, well before a now-extended (to a
final september 11, 2009 conference) and a
september 9, 2009 trial date.

today’s orders also prevented the dismissal
of several of the officer-defendants (on the grounds
of imunity). that is a very strong hint that this
one is going to turn on the particular facts dick
cheney either admits to, or has cross-examined out
of him — at the coming civil deposition. were i
a betting man, and i am, i’d bet real money that
dick cheney will be counseled to settle — before
the new trial date comes. i bet he’ll sit for his depo,
but i think he’ll get sufficiently “tangled up” there,
that he’ll have few real option beyond agreeing to
pay mr. howards — or end up being humiliated in a
very public five-day trial in the federal courthouse
in denver, colorado. and that is the way it should
probably go, afterall. take a look:

HEARING: Motions
9:00 a.m. Court in session.

Argument.

10:25 a.m. Court in recess.

10:37 a.m. Court in session.

Oral findings of facts, conclusions of law made of record.

ORDER: Defendants Reichle and Doyle’s Motion for Summary Judgment on the Basis of Qualified Immunity (155) is denied.

ORDER: Motion of Defendants Daniels and McLaughlin for Summary Judgment (156) is denied.

ORDER: Plaintiff Motion for Continuance of Trial (185) is granted. . . .

DEADLINES/HEARINGS:

Final Trial Preparation Conference reset to September 11, 2009 at 9:00 a.m.

Five-day jury trial reset to September 28, 2009, at 9:00 a.m.

10:56 a.m. Court in recess/hearing concluded.

Total in-court time: 1:44

this is all about whether we, ordinary citizens of
these united states, do still possess the fundamental
right to dissent from our government’s policies,
and petition it — for the “redress of [our] grievances. . .”

. . .The cases do not involve, as the present case does, situations where the high-ranking official to be deposed was an eyewitness or physical participant in an event which precipitated the lawsuit.

Furthermore, and perhaps more obviously, Mr. Cheney is no longer a high-ranking government official, so the Court questions whether these cases are still applicable. In any event, the Court believes that Mr. Cheney should be deposed because he has relevant testimony that is unavailable from any other source in this case. . .

no doubt, cheney’s lawyers will appeal
this order allowing the service, and
therefore, the sworn deposition of the dick.

so — it will be a while, but he will
eventually have to answer — under oath — why
he ordered his guards to arrest steven howard
for simply expressing his first amendment pro-
tected views about the administration’s policies
in iraq. one small one for the good guys.

in many ways, dick cheney crippled
our once proud nation’s commitment
to individual liberty and privacy — so,
it seems ironic that he would hurt his
back (moving a “man-sized” safe, all by
his lonesome — in secret — perhaps?) — and
leave office in a wheelchair, looking suspiciously
like the second runner-up in the “old man potter“
look-alike-contest (reference capra’s “it’s a wonderful life“):

in fact, he’ll likely be just up the road (north
a few hundred miles, on i-25), in wyoming –
jackson hole, or casper, actually. cool.

in retirement — but still in league with evil.

do take a look — 2009 could provide this goofy gift:

namaste.