… Patient Protection and Affordable Care Act (commonly known as Obamcare) will end up before the U.S. Supreme Court. Specifically, the question of the constitutionality of the Obamacare “individual mandate” is the most likely candidate at this point for Supreme Court adjudication.
This week we filed a lawsuit against the Obama Department of Justice to obtain documents detailing Supreme Court Justice Elena Kagan’s participation in discussions related to Obamcare while she served as U.S. Solicitor General. Here’s the issue: If Kagan participated in crafting the legislation or even discussed anticipated legal challenges to the law, she might have to recuse herself from the decision.
We want to know the precise nature of Kagan’s role in the development of Obamacare. And this is what we’re seeking with our FOIA request and lawsuit:
All records of communication, briefing materials and/or legal opinions concerning the constitutionality of the Patient Protection and Affordable Care Act of March 23, 2010.
Any and all records of communications between the Office of Solicitor General and any of the following entities concerning the constitutionality of the Patient Protection and Affordable Care Act:
(a) The Executive Office of the President; (b) The Department of Justice Office of Legal Counsel; and (c) The Office of Attorney General.
As we noted in our lawsuit, Obamacare “is one of the most controversial pieces of legislation in U.S history. It has already been the subject of much litigation, and the constitutionality of the Act will likely be decided by the United States Supreme Court within the next two years.”
In fact, you will recall that on January 31, 2011, federal Judge Roger Vinson ruled Obamacare unconstitutional in a consolidated lawsuit that involved 26 states challenging the law due to the requirement that all Americans must purchase health insurance. (Both Attorney General Eric Holder and HHS Secretary Kathleen Sebelius have said without this “health care mandate,” Obamacare “doesn’t work.”)
It has been reported that, while serving in her previous capacity as U.S. Solicitor General, Justice Kagan may have been involved in discussions related to Obamacare, including how the Obama administration might defend the law against legal challenges. Justice Kagan has already publicly admitted she “attended at least one meeting where the existence of the litigation” was mentioned. Senator Orrin Hatch (R-UT), noting the conflict of interest, has called upon Justice Kagan to recuse herself when the law ultimately reaches the nation’s High Court.
And what has been the Obama administration’s response to our attempts to get to the truth about Kagan and Obamacare? A familiar one: stonewalling.
Judicial Watch filed its original FOIA request on June 18, 2010. The Department of Justice acknowledged receipt of the request on July 8, 2010. However, to date, Justice has failed to release any documents or demonstrate why documents must be withheld. Nor has Justice indicated when responsive documents may be forthcoming.
U.S. Supreme Court rulings on Obamacare may be some of the most important in the nation’s history. With so much at stake, this is no time for gamesmanship and secrecy by the Obama Justice Department. This is a simple question and the American people deserve a straight answer: What role did Elena Kagan play in Obamacare discussions while she was at the Justice Department? The Justice Department’s stonewalling silence is deafening.
The irony is that leftists are running a coordinated campaign to pressure Justice Thomas to recuse himself from any Obamacare cases. That there are no facts warranting such a recusal is no bar to the left-wing effort to politicize the High Court to protect Obamacare. So the only set of facts that might warrant a recusal in the matter relates to Justice Kagan and is being unlawfully withheld by the Obama administration that appointed her.
JW Unearths Additional Details from the Kennedy FBI File
What was the FBI hiding about the late Senator Edward “Ted” Kennedy’s sordid past?
Judicial Watch finally found out when we obtained previously redacted material from the FBI file of the late Massachusetts Democrat who died in August 2009 from brain cancer. We got the records pursuant to a Freedom of Information Act (FOIA) lawsuit, originally filed on June 9, 2010. And they make for a fascinating read. (In fact, our discovery scored hundreds of press hits nationwide. Here’s a link to a Fox News report.)
Of particular interest is a December 28, 1961, FBI memo describing a tour of several Latin American countries taken by then-Assistant District Attorney of Suffolk County Kennedy.
Now, Judicial Watch had previously obtained this very memo, but the document that was originally made public was almost completely redacted. After an initial challenge by Judicial Watch, a version with fewer redactions was released. Still not satisfied, our legal team continued to argue that the blackouts were baseless and, after six more months, the FBI relented.
So here are the statements the FBI tried to keep secret but were recently made available to Judicial Watch:
“While Kennedy was in Santiago he made arrangements to ‘rent’ a brothel for an entire night. Kennedy allegedly invited one of the Embassy chauffeurs to participate in the night’s activities.”
"[I]n each country Kennedy insisted on interviewing ‘the angry young men’ of the country. He wanted to meet with communists and others who had left-wing views. …Ambassador Freeman, Bogota, said the first person whom Kennedy wanted to meet was Lauchlin Currie.” (The document subsequently identifies Currie as a person who “had been mentioned in Washington investigations of Soviet spy rings.”)
“[I]n Mexico Kennedy asked Ambassador Mann that certain left-wingers be invited to the Embassy residence where interviews could be held. Mann took the strong position that he would not invite such people and stated that if any such interviews were to be conducted, all arrangements should be made by Kennedy himself.”
All this is certainly consistent with another document in the Kennedy FBI file we uncovered last year, dated March 28, 1963. The document details the FBI’s concern over a campaign by Ted and Robert Kennedy to pressure the State Department to allow Katalin Karady, a Hungarian émigré living in Brazil — described as “consistently refused an immigrant visa because of the voluminous subversive and derogatory data on file concerning her” — into the United States. Here’s a squib from the memo:
Legat, Rio de Janeiro, has furnished data from State Department files, Sao Paulo, Brazil indicating that in August, 1961, Edward and Robert Kennedy, now U.S. Senator and Attorney General, respectively, were interested in [Katalin Karady’s] obtaining an immigrant visa to U.S. Subject is former Hungarian actress of unsavory reputation who has now obtained the immigrant visa.…
Subject, Hungarian-born, aged 48, is former well-known actress in Hungary. Numerous allegations have been received in the past indicating subject to have been a communist collaborator, lesbian, and prostitute. She has reportedly admitted being the fiancée of the head of Hungarian intelligence (Nazi) during World War II.
(FBI Director J. Edgar Hoover appears to have handwritten the note “I am speechless!” at the bottom of this memo.)
The FBI’s reluctance to follow the law and release this material shows that it, too, is not above politics. Our tough fight with the Obama administration shows that it was not keen on letting the American people know that Ted Kennedy, one of Obama’s leftist politician heroes, liked to hang out with communists and prostitutes. This story is as much about the Obama administration’s flouting of our transparency laws as it is about Ted Kennedy’s sketchy past.
(Or was it the Kennedy family who pressured the FBI to withhold this information? Last April, The Boston Globe reported that the FBI had decided to allow the Kennedy family to object to the release of certain documents citing privacy concerns: “Edward M. Kennedy’s family will be given a rare opportunity to raise objections before the public disclosure of thousands of pages of the late Massachusetts senator’s exhaustive and secret FBI file, according to bureau officials and advisers to the family.” And we know that the family, represented by none other than Obama pay czar Kenneth Feinberg, wanted none of the Kennedy FBI files released.)
We will continue to investigate why the FBI improperly chose to keep this information. But in the meantime, we are happy to have played a role in completing the public record of one of the most scandal-plagued and controversial politicians in modern political history.
(By the way, Judicial Watch, through separate litigation, also recently forced the FBI to begin the release of their file on the late Ted Stevens, the long-time Republican Senator from Alaska.)
Judicial Watch Obtains Bush Defense Department Documents
Detailing Terrorist Threat Posed by Guantanamo Detainees
So what would happen if Barack Obama were to keep his promise to shut down the military detention facility at Guantanamo Bay and release enemy combatants housed there?
According to the Bush administration, these terrorist sympathizers would immediately “set out to kill Americans or other innocent civilians around the world.”
That bleak assessment comes from a batch of documents from the Department of Defense (DOD) recently obtained by JW. Overall, they detail the policies of the Bush administration related to the detention of enemy combatants at Guantanamo Bay, as well as the significant risks to the general population if the detainees were released.
The records, which we got through the Freedom of Information Act, include a “Summary of Conclusions” for a June 19, 2003, meeting of the National Security Council (NSC) Principals Committee, which included top Bush administration officials, as well as a February 4, 2004, draft presentation entitled “Guantanamo Detainees” that was previously marked “Not for Public Dissemination.”
Here are a few of the highlights:
The NSC Summary of Conclusions includes a detailed list of Bush administration officials who attended the June 19, 2003, meeting, including: Former National Security Advisor and Secretary of State Condoleezza Rice, who chaired the meeting; Former Defense Secretary Donald Rumsfeld; Former Attorney General John Ashcroft; Former Deputy Secretary of State Richard Armitage; and White House Counsel Alberto Gonzales, among others. The meeting included representatives from the Departments of State, Defense, Treasury, and Justice as well as the Office of Vice President, CIA, White House Counsel, Joint Chiefs of Staff and National Security Council.
According to the NSC Summary of Conclusions document, meeting participants requested another briefing to “include information regarding efforts to ensure that detainees who are released are prepared to be reintegrated into their societies and, to the extent possible, will not harbor ill will towards the United States.” [Emphasis added]
The Department of Defense briefing document, entitled “Guantanamo Detainees,” clearly stated the dangers of releasing enemy combatants currently held at Guantanamo Bay into the general population:
“There is substantial risk that detainees at Guantanamo, upon release, would set out to kill Americans or other innocent civilians around the world.”
“Releases are not without risk if the individuals decide to resume fighting against us. Even though we have been careful and thorough in our screening, we now believe that several of the released detainees have returned to fight against the US and coalition forces.”
The Defense Department briefing also includes a detailed chronology of the threat posed by al-Qaida beginning in 1996, biographies on some of the enemy combatants being detained, intelligence gathered from these detainees and a discussion about the Bush administration’s policies regarding the processing and treatment of detainees.
And why is this information from the previous administration relevant today?
Because two days after his inauguration, Barack Obama signed an executive order directing that Guantanamo Bay be closed within a year. The Obama administration, while disparaging the military tribunal process, pledged instead to bring terrorist suspects to justice using the civilian court system. (Remember the Khalid Sheikh Mohammed trial-in-New York fiasco? The Obama administration still doesn’t have a resolution.)
To date, the Guantanamo Bay facility remains open. In fact, on February 18, 2011, Defense Secretary Robert Gates told the Senate Armed Services Committee that the chances of closing the Guantanamo Bay facility are “very, very low” due to congressional opposition. CIA Director Leon Panetta, meanwhile, told the Senate Intelligence Committee on February 17, 2001, that, if Osama bin Laden were captured, he would be transferred to Guantanamo Bay.
However, when asked about Panetta’s statement contradicting Obama’s public pronouncements regarding Guantanamo Bay, White House Spokesman Jay Carney told reporters: “The president remains committed to closing Guantanamo.” (I encourage you to go over to the Weekly Standard web site, where there is an excellent analysis of these new documents.)
If Obama ever makes good on this commitment, as these documents demonstrate, the result would be dangerous and disastrous. The fact is that the Obama administration has completely mishandled the Guantanamo Bay facility from the outset. The intelligence community is shouting from the rooftops about the dangers of hastily closing Guantanamo Bay and releasing terrorists into the public. And these documents show that the government has known for years that terrorists released from Gitmo commit more terrorism and fight and kill our troops. Yet both the Bush administration and Obama administration keep releasing terrorists.
(As a related aside, Judicial Watch Civil Litigation Director, attorney Paul Orfanedes, visited Guantanamo Bay in 2008 to monitor military commission proceedings against top 9/11 conspirators. Judicial Watch’s presence provided some balance to the ACLU and other radical groups advocating for the terrorist detainees.)
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Tom Fitton – President
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