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Judicial Watch Weekly Update

November 11, 2011

Judicial Watch President Tom FittonFrom the Desk of Judicial Watch President Tom Fitton:

JW: New Boeing Controversy Documents Show NLRB Staff Joking, Attacking US and Congress

Last month, Judicial Watch released documents from the National Labor Relations Board (NLRB) that detailed controversial remarks by NRLB staff related to the agency’s lawsuit against Boeing. The NRLB, you will recall, filed its dubious lawsuit against the Seattle-based company for deciding to open a $ 750 million non-union assembly line in North Charleston, South Carolina, to manufacture its Dreamliner plane.

Well, as controversial and irresponsible as those remarks were, after receiving an additional batch of documents from the NLRB this week, we learned they were just the tip of the iceberg.

These new documents, which we obtained pursuant to Judicial Watch’s original July 14, 2011, Freedom of Information Act request and subsequent lawsuit, include internal correspondence among NLRB attorneys discussing the Boeing lawsuit. And check out these highlights:

  • On April 22, 2011, Acting NLRB General Counsel Lafe Solomon sent an email to Wilma Liebman, outgoing Chairwoman of the NLRB, “The article gave me a new idea. You go to geneva [Switzerland] and I get a job with airbus [French company]. We screwed up the us economy and now we can tackle europe.” Solomon’s comment was in response to an article published in French on the European Planet Labor website noting the devastating potential economic impact on South Carolina if the plant were to be scuttled: “Two billion dollars were invested in Charleston, 1,000 employees were recruited, and the site was supposed to open in July… until the NLRB meddled in.”
  • On April 22, 2011, NLRB attorney Debra Willen received an email, in which Republican Sen. James DeMint of South Carolina is ridiculed as “Sen. Dement.”
  • On May 12, 2011, NLRB Deputy Assistant General Counsel Joseph Baniszewski emailed a political cartoon to Deputy Assistant General Counsel Jennifer Abruzzo mocking the state of South Carolina with regard to Boeing Corporation’s decision to locate its manufacturing facility in that state.
  • On April 28, 2011, Miriam Szapiro sent an email to NLRB attorney Debra Willen commenting on an article in The Economist expressing some support for the Boeing lawsuit: “Exactly; it just shows you how incredibly reactionary the US is, that the conservative Economist thinks we’re Neanderthal.”
  • On April 20, 2011, Mara-Louise Anzalone, counsel for Acting NLRB General Counsel Lafe Solomon, took exception to U.S. Senator Lindsey Graham’s (R-SC) statement, “As Senator, I will do everything in my power, including introducing legislation cutting off funding for this wide goose chase, to stop the NLRB’s frivolous complaint [against Boeing].” In an email to NLRB regional attorney Anne Pomerantz, Anzalone writes, “Awesome. Sounds like they’re just going to furlough you and me.”

The documents also include Lafe Solomon’s personal notes detailing conversations with Senator Graham, who said, according to the notes, that “the ‘retaliatory charge’ of the Machinists against Boeing would have huge economic and political consequences” and that if the NLRB filed the complaint, the senator would come out “full guns a-blazing.” The notes also describe Senator Graham as saying “that he was more reasonable than his Senate counterpart (Sen. DeMint).”

I thought it particularly interesting to see a government official complain about “how incredibly reactionary the US is…” The term “reactionary” is Marxist. There is no other reasonable way to describe it, certainly not in this context.

Is there any doubt now that the Obama administration’s attack on Boeing is irresponsible and politically motivated? Read these documents for yourself. NLRB attorneys come off as juvenile politicos rather than professionals interested in arbitrating a labor dispute. Their utter contempt for congressional oversight shows that the NRLB thinks it is above the law. We hope these documents help to educate the public about the ongoing abuse of power by this agency.

By way of review, the NLRB filed its lawsuit against Boeing in April 2011, claiming that the company’s decision to open a Dreamliner production line in South Carolina was in retaliation against The International Association of Machinists and Aerospace Workers for a series of union strikes that reportedly slowed production of the plane in 2008 in Washington State.

According to Boeing the NLRB’s “claim is legally frivolous and represents a radical departure from both NLRB and Supreme Court precedent. Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. production capacity outside of the Puget Sound region.”

So why is the NLRB meddling in Boeing’s business, attempting to dictate where and under what circumstances Boeing can manufacture its plane?

As I’ve said before, problems at the NLRB begin right at the top with Craig Becker, head of the NLRB’s five-member board. Anticipating a nasty battle, President Obama bypassed the U.S. Senate and recess-appointed Becker. The Becker appointment was made after the Democrat-controlled Senate refused to move forward on his confirmation.

An ally of ACORN, Becker had previously worked for the SEIU and the AFL-CIO, major financial backers of Obama and the Democratic Party. Controversially, Becker has refused to recuse himself from certain NLRB decisions affecting his former union clients. And now Becker’s minions at the NLRB are cheerleading for the unions and behaving irresponsibly in attacking a major U.S. corporation.

When his key staff is mouthing Marxist, anti-American slurs and others are showing contempt for Congress, it is no wonder that the Obama-controlled agency would engage in an over-the-top legal attack on a major U.S. corporation.

Special Report from Gitmo: JW Monitors Guantanamo Bay Military Commission Proceedings against USS Cole Bombing Defendant

Just two days after his inauguration, Barack Obama signed an executive order directing that Guantanamo Bay be closed within a year. In an effort to bring this campaign promise into reality, and to bring terrorists into the civilian court system, the Obama administration has irresponsibly disparaged military tribunals and the Guantanamo Bay terrorist-detention facility. While the facility remains open, White House Spokesman Jay Carney told reporters in February 2011: “The president remains committed to closing Guantanamo.”

And what happens if the President makes good on this promise? Some terrorists will get their “day in court.” Others are likely to be released altogether.

You may recall that JW uncovered some Bush-era documents earlier this year documenting the significant risks to the general population if the detainees were released. One Department of Defense document describes the danger in stark terms: “There is substantial risk that detainees at Guantanamo, upon release, would set out to kill Americans or other innocent civilians around the world.”

Thanks to the public’s negative reaction to Obama’s “new-rights-for-terrorists” proposals, a day in a civilian court or an all-out release was not immediately in the offing for Abd al-Rahim al-Nashiri, an al-Qaida member accused of orchestrating the October 12, 2000, attack on the Navy destroyer USS Cole. He must face a military tribunal first.

Judicial Watch was granted approval to monitor as a non-governmental organization (NGO) Abd al-Rahim al-Nashiri’s arraignment, which was held at the Guantanamo Bay Naval Station, Cuba on Wednesday, November 9. The prosecution plans to seek the death penalty.

Judicial Watch representative Irene Garcia (who many of you know as JW’s Corruption Chronicles blogger) observed the proceedings by the U.S. Department of Defense through the Office of Military Commissions. At this time, the proceedings against Abd al-Rahim al-Nashiri represent the only active case scheduled for Guantanamo Bay.

Here is Irene’s first-hand report from Gitmo on the arraignment:

Abd al-Rahim al-Nashiri was escorted into a top security courtroom at Guantanamo Bay Naval Station Wednesday morning by an army of military officers. Clean shaven and with short-cropped hair, the al-Qaeda terrorist charged with orchestrating the 2000 attack on the Navy destroyer USS Cole chose to wear his white prison jump suit to the arraignment of his military tribunal. In fact, he told the judge through his Arabic interpreter that he “intended to show up” in his “prison uniform” though he knew of his right to wear civilian clothes.

Al-Nashiri appeared physically fit, cocky and quite relaxed for a man facing death. At times he smiled and often looked back at the media and observer gallery separated from the courtroom by sound-proof glass. Shortly after entering the courtroom al-Nashiri waved at the observer gallery where family of USS Cole victims also sat. At a press conference following the four-hour hearing, al-Nashiri’s defense attorney, Richard Kammen, dismissed it as a “completely meaningless gesture” and a “reaction to being in a different setting.” Al-Nashiri did not enter a plea in the death-penalty case.

Next to al-Nashiri were his four taxpayer-funded defense attorneys—two civilian and two military—led by Kammen, who has impressive credentials as a renowned death-penalty lawyer and has appeared before the U.S. Supreme Court and federal district courts throughout the nation. Kammen estimates it will cost millions to defend al-Nashiri, whose trial has been tentatively scheduled for next November.

About an hour into the hearing Kammen bombarded the judge, Army Colonel James Pohl, with a series of questions not permitted by counsel in civilian courts. Among them was the judge’s personal opinion about the death penalty and if he thought al-Nashiri was guilty. Kammen also asked Judge Pohl if he believed that, by torturing al-Nashiri, the U.S. forfeited its “moral authority to seek the death penalty” against him. The judge responded that he did not think al-Nashiri was guilty and dismissed the other questions as irrelevant to the proceedings.

Judge Pohl went out of his way to assure that al-Nashiri understood all his rights and repeatedly asked if he comprehended what was going on in the hearing. Al-Nashiri responded affirmatively, often slouching in his chair and appearing uninterested. Besides al-Nashiri, eight people sat on the defense side and six on the prosecution. Designed to try high-value detainees, the courtroom seats only the legal teams and jury. Around 15 chairs that accommodate military guards line the side wall. The viewing gallery seats about 50 and audio is delayed 40 seconds to protect classified information that may arise in proceedings.

Judicial Watch was approved by the Department of Defense (DOD) to observe al-Nashiri’s arraignment along with several legal and civil rights groups, most of which are advocating on al-Nashiri’s behalf and pushing for the trial to be held in a civilian court rather than a military tribunal. Judicial Watch witnessed a deep commitment to justice by military lawyers as well as al-Nashiri’s topnotch capital defense attorney. Even some of the pro al-Nashiri civil rights advocates who witnessed the arraignment admitted it was “well managed” and that they were “impressed” with some of the questions asked by defense attorneys…

…After the arraignment the father of a sailor who died in the blast answered what appeared to be a challenge by a reporter about the death penalty in this case. “It’s worth it for 17 of our soldiers,” said John Clodfelter whose 21-year-old son Kenneth died in the USS Cole attack.

The USS Cole was the target of a suicide attack while the warship was moored and being refueled in the Yemeni port of Aden. Seventeen American sailors were killed and 39 were injured. The blast occurred when a skiff laden with explosives detonated against the port-side hull of the USS Cole and tore a 40-by-40-foot hole in the side of the stricken ship. It was the deadliest attack against a U.S. Naval vessel since the Iraqi attack on the USS Stark in May 1987.

Osama bin Laden’s al-Qaeda terrorist organization claimed responsibility for the attack, which occurred less than a year before 9/11. And in 2002, al-Qaeda operative Abd al-Rahim al-Nashiri was captured in the United Arab Emirates and charged with being the mastermind of the bombing. He has been a prisoner at the Guantanamo Bay facility since September 2006. Previous to that, he was held in a secret Central Intelligence Agency (CIA) location.

It has been a long time in coming, but Abd al-Rahim al-Nashiri is facing the justice he deserves in the right place — before a military tribunal. We were pleased to once again observe the military tribunal process and to provide some balance to the radical groups advocating for the terrorist detainees that were observing the proceedings.

In 2008, Judicial Watch Director of Litigation Paul Orfanedes visited Guantanamo Bay to monitor military commission proceedings against Khalid Sheik Mohammed and other top 9/11 conspirators. (We were on the ground to help counterbalance the ACLU.) I published a brief interview with Paul that appeared in this space after his visit. Feel free to check it out to see Paul’s observations regarding the military tribunal process.

Judicial Watch Lawsuit on Behalf of 9/11 Victim Moves Forward after Appellate Court Rules against Islamic State of Afghanistan

Osama bin Laden is dead. But the horrible legacy he left behind remains with the families of 9/11 victims.

Judicial Watch, for its part, continues to pursue justice on behalf of one of these family members, the widower of a woman who was murdered at the World Trade Center on 9/11. And this week we received a critical court victory that moves us one step closer to holding the State of Afghanistan accountable for its role in those terrorist attacks.

On November 7, the United States Court of Appeals for the Second Circuit ruled in favor of Judicial Watch client and 9/11 widower “John Doe” in his “conspiracy and wrongful death” lawsuit against the Islamic State of Afghanistan (John Doe v. Usama bin Laden, et. al., Islamic Emirate of Afghanistan, also known as the Islamic State of Afghanistan (No. 09-4958-cv)). The State of Afghanistan filed an appeal after the district court refused to dismiss the complaint.

Here’s a brief squib from the appellate court ruling.

Defendant-Appellant Afghanistan appeals from an order of the United States District Court for the District of Columbia denying without prejudice its motion to vacate entry of default and to dismiss the complaint…we agree with the district court that Plaintiff-Appellee John Doe’s suit is properly considered under the noncommercial tort exception to foreign sovereign immunity provided by 28 U.S.C. § 1605(a)(5).

Because factual issues persist with respect to whether the Taliban’s actions in allegedly agreeing to facilitate the attacks of September 11, 2001, are properly considered to be the action of Afghanistan and as to whether any such actions were “discretionary” under § 1605(a)(5)(A), we remand the case for jurisdictional discovery…

The “noncommercial tort exception” to the Foreign Sovereign Immunities Act provides that a foreign state shall not be immune from liability in any case “in which money damages are sought against a foreign state for personal injury…occurring in the United States and caused by the tortious act or omission of that foreign state….” (Tortious is just a legal term for “wrongful.”)

Lawyers for Afghanistan, meanwhile, attempted to advance the ludicrous argument that a country can only be held accountable for terrorist acts if the country is on the State Department’s list of terrorist supporting countries. Afghanistan’s legal argument was correctly labeled by the district court as a “peculiar” interpretation of the non-commercial tort exception and would lead to an “absurd” result Congress could not have intended. (Afghanistan had not been on the State Department’s list of state sponsors of terrorism on 9/11.)

You can read some of our legal analysis pertaining to Afghanistan’s arguments here. But this is what the court meant by “absurd.” Afghanistan’s interpretation of the FSIA exception would allow Judicial Watch to sue Afghanistan if its ambassador ran over our client’s cat, but not for sending terrorists to murder nearly 3,000 innocents, including our client’s wife!

It’s been over a year since I’ve covered this lawsuit, so here’s a quick summary of how we got here.

“John Doe’s” wife was attending a meeting on an upper floor of the south tower of the World Trade Center when United Airlines flight 175 struck the tower several floors below. “Jane Doe” was 47 years old at the time of her death and was survived by her husband and their two children.

Two months later, in December 2001, Judicial Watch filed a civil lawsuit on behalf of “John Doe” with the U.S. District Court for the District of Columbia against Bin Laden and the State of Afghanistan “for conspiracy and wrongful death under the noncommercial tort exception of the Foreign Sovereign Immunities Act (FSIA).”

In 2003, the court clerk filed a default against Afghanistan for failing to respond to the lawsuit. Afghanistan eventually did respond in 2004, moving to vacate the default and filing a motion to dismiss the lawsuit. In September 2008, the U.S. District Court “denied without prejudice” Afghanistan’s motion to dismiss, leading to the appeal to the United States Court of Appeals for the Second Circuit – and to our recent court victory.

We are obviously very pleased the court was not persuaded by the State of Afghanistan’s ridiculous interpretation of the law. The State of Afghanistan is certainly responsible for the attacks of 9/11 and the murders of nearly 3,000 innocents, including “Jane Doe.” After 10 years, we look forward to finally being able to make the case for our client in court. It is beyond belief, frankly, that Afghanistan has yet to be held accountable in court for 9/11. We will do what we can to right this wrong.

***

I want to close by expressing our heartfelt gratitude to all of the men and women who have served, and continue to serve, in the United States Armed Forces. We honor your commitment to our country and to the incredible sacrifices you have made to preserve our freedoms and our way of life. Judicial Watch has several fine veterans on staff and I’m happy to report that a disproportionate number of our supporters are veterans. Happy Veterans Day!

Until next week…

Tom Fitton (signature)
Tom Fitton
President

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