As I noted yesterday, the three sent a letter to President Obama yesterday — and blasted a press release to reporters — calling on the president to halt the “planned” transfer of six Yemeni detainees back to their home country, because it turns out that Yemen is chock full of terrorists. The three only learned this, it appears, after reading that the would-be Christmas bomber Umar Farouk Abdulmutallab spent some time there. But there’s no way that the three senators and their aides and press secretaries did not know that the Obama administration had already sent back the six Yemeni detainees in question at least ten days earlier. Just do a Google search — it was in thousands of news outlets around the world. And that was following a press release issued by the Department of Justice on Dec. 20.

What’s more, the six detainees, who the senators said in their letter (without naming them) “have been identified as threats to the United States and its allies” had actually all been determined by the administration’s Guantanamo Detainees Review Task Force not to be threats to the U.S. government. One of them had even been ordered freed by a U.S. federal judge.

Yesterday I searched for hours to find out if there were six more detainees hidden somewhere that the administration was about to send back, some particularly dangerous Yemenis about to leave Gitmo that maybe these senators knew about and the rest of us didn’t.  But no, there aren’t. The Justice Department and lawyers representing Yemeni detainees in Guantanamo, at least, knew nothing about such impending plans for another group of six. And when I asked Graham’s press office just which six Yemeni detainees they were talking about — Graham spokesman Kevin Bishop couldn’t name them, either.

The only logical conclusion is that the three senators were referring to six detainees who’d already been sent back to Yemen — and that they were doing so purely to try to embarrass the Obama administration and create yet another obstacle to closing down the prison camp at Guantanamo Bay. As I wrote back in February, what to do with the Yemenis, many of whom the administration has determined are not dangerous, remains one of the administration’s biggest obstacles to closing the prison camp.

None of this is new, and certainly McCain, who as a presidential candidate last year actively campaigned to close Gitmo, knew that. Apparently that won’t stop anyone from using a high-profile averted holiday disaster for his own political gain.

The question of whether McCain did or did not flip-flop on Medicare cuts notwithstanding, McCain’s citation of FactCheck.org — the reputable fact-checking Website operated by the University of Pennsylvania’s Annenberg Public Policy Center — is itself a pretty dramatic flip-flop.

In the heat of the campaign last year, I asked McCain if he had any comment on a series of FactCheck.org analyses that found that many of his campaign advertisements contained false or misleading information. McCain responded by chuckling and giving a rather dismissive answer that failed to address the heart of the question.

Me: Senator, FactCheck.org, the nonpartisan fact-checking Website, has cited nine — eight or nine — of your recent ads as containing false or misleading information. I was wondering how you would respond to this, and how do you reconcile it with your pledge to run an honorable campaign?

McCain: [Chuckling] I don’t respond to Websites that I have no idea what they’re talking about. I’m proud of our campaign. We have been fair. We have been balanced, and we have clearly pointed out the differences between myself and Sen. Obama.

So in August of last year, McCain had a low opinion of FactCheck.org when it was criticizing the factual basis of his campaign ads. But today, McCain requested that one of the site’s reports that supported him be entered into the Congressional Record.

And what’s more, if you want to be absolutely technical about it, McCain’s comments on the Senate floor today actually represent a rare (and risky!) double-flip. As I reported last year, even before McCain pleaded ignorance on FactCheck.org’s credibility, his campaign put out a press release using one of the organization’s analyses to defend the Arizona senator from an AFL-CIO attack ad about his support of veterans’ health benefits. That press release mysteriously vanished from the campaign Website sometime after I wrote about it.

It would seem that, just as he did last year during the presidential race, McCain is still trying to have it both ways.

It is important to note that the case reargued today does not affect the core of the McCain-Feingold campaign finance law – the ban on large, unregulated donations to the political parties by corporations, unions and wealthy individuals. Nonetheless, at stake in this case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are called into question. Overturning the Austin decision would open the floodgates to unlimited corporate spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, like a Fortune 500 company, are much more likely to be heard during an election than average American voters.

It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision. During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.

“No real earnings growth in this report that would suggest sustained upward growth in this economy,” Holtz-Eakin said. “It cannot be considered good news that people left the labor force. If not for that, the unemployment rate might have creeped up to 9.6 percent, is my guess.”

Holtz-Eakin challenged Democratic rhetoric about the effect their policies have had in mitigating economic problems, though he allowed that “no one would argue that the stimulus has done nothing.” The problem: Some Republicans have argued exactly that. In February, Dick Armey, the former House GOP majority leader who now leads FreedomWorks, predicted that the stimulus would actually worsen the economic picture. “Taking money out of the private economy,” Armey wrote, “either through taxes or inflation… and spending it in a way that doesn’t offset the loss of money with real economic gains is worse than doing nothing.” In July, Sen. Jon Kyl (R-Ariz.), the GOP’s whip in the Senate, suggested canceling the rest of the stimulus in a column that ran down the ways it seemed, to him, to be failing and wasting money.

Sen. John McCain (R-Ariz.) during his presidential campaign (WDCpix)

In the final months of the 2008 presidential race, Sen. John McCain’s (R-Ariz.) campaign learned of a lawsuit filed in Pennsylvania that asked the state to strip Sen. Barack Obama (D-Ill.) of the Democratic nomination on suspicion that he was not an American citizen. The complaint for declaratory and injunctive relief was filed by Phil Berg, a former deputy state attorney general who left government in 1990 for a series of gadfly political campaigns. His last round of notoriety had come when he filed RICO complaints against George W. Bush, Saddam Hussein and multiple members of the Bush administration for “accountability” for the 9/11 attacks. Still, Berg’s complaint had gotten glancing local media attention, and the Democratic National Committee’s counsel had filed a motion to dismiss it. One lawyer who was doing some work for the campaign was tasked with reading Berg’s lawsuit and gauging its chances of success.

Image by: Matt Mahurin

“The conversation was along the lines of ‘this is idiotic, but explain to me why,’” said the lawyer, who spoke under condition of anonymity to TWI. “I looked at whether the lawsuit was going to be dismissed. I said yes.”

Berg’s main problem was the one that has bedeviled the small, but growing, number of lawyers and amateur attorneys who have filed frivolous lawsuits against President Obama on the “question” of his American citizenship. He and they have run up against the doctrine of standing, which requires plaintiffs to prove that they have been or will be harmed by the law that they’re challenging. Like the people who challenged McCain’s citizenship in 2008 and 2000, or the people who challenged Dick Cheney’s right to run for vice president because he, like George W. Bush, resided in Texas, “birther” plaintiffs have failed again and again to get their cases heard because they lack standing.

“We monitored the progress of these lawsuits against the Obama campaign,” said Trevor Potter, a Washington attorney who served as general counsel to the 2008 and 2000 McCain presidential campaigns. “The McCain campaign faced a series of lawsuits like this, too, alleging that he could not be president because he was born in the Panama Canal Zone. Both campaigns took the position that these plaintiffs lacked standing.”

But the flawed conception of the many “birther” lawsuits, coupled with the inexperience and foul-ups of “birther” lawyers, have only fed the frenzy over Obama’s legitimacy to serve as president of the United States. A survey of the lawsuits filed against Obama reveals a reliance on widely debunked rumors, bogus stories sourced back to web sites, affidavits from “experts” who refuse to provide credentials or even their real names, and frequent and blatant misunderstandings of basic constitutional law. The dismissal of “birther” lawsuits has allowed conspiracy theorists to believe that the information in those suits is accurate–a belief that manifests itself in the emails, phone calls, and town hall meeting rants that have pushed the theories into the mainstream media and the halls of Congress.

While they ruled out any chance of the “birther” lawsuits holding up in court, lawyers for the McCain campaign did check into the rumors about Obama’s birth and the assertions made by Berg and others. “To the extent that we could, we looked into the substantive side of these allegations,” said Potter. “We never saw any evidence that then-Senator Obama had been born outside of the United States. We saw rumors, but nothing that could be sourced to evidence. There were no statements and no documents that suggested he was born somewhere else. On the other side, there was proof that he was born in Hawaii. There was a certificate issued by the state’s Department of Health, and the responsible official in the state saying that he had personally seen the original certificate. There was a birth announcement in the Honolulu Advertiser, which would be very difficult to invent or plant 47 years in advance.”

“Birther” lawyers and bloggers, who gained an unexpected prominence in the mainstream media, have consistently denied Hawaii’s own records of Obama’s birth. They have also built up a corpus of information which, they argue, would invalidate Obama’s claim on the White House even if he was born in the United States. These rumors, and the inability of “birther” lawyers to test them in court, have proven pervasive enough to fuel the conspiracy theories.

After the DNC requested a dismissal of Berg’s lawsuit, he responded in a Sept. 29, 2008 filing that cited numerous Internet rumors and incorrect citations of American and international law. Berg cited “Wikipedia Italian version” and “Rainbow Edition News Letter” as evidence that Obama had not been clear about which hospital he was born in; he alleged that Obama must have been adopted by Lolo Soetoro, the Indonesian man who married Obama’s mother when the future president was five years old, because he attended elementary school in that country. Because a contemporary school record referred to Obama as “Barry Soetoro” and listed his nationality as “Indonesian,” Berg argued that there was “absolutely no way Obama could have ever regained ‘natural born’ status.”

“That’s just completely wrong,” said Mitzi Torri, an Arizona-based immigration lawyer. Torri pointed to the Immigration and Nationality Act of 1952, which sets a high bar for renunciation of American citizenship. According to the INA, an American can only forfeit his citizenship if he commits treason, if he makes a “formal declaration of allegiance to a foreign state,” or if he becomes a citizen of another country “upon his own application or upon an application filed by a duly authorized agent.”

“Berg wants to say,” said Torri, “that this document from a school in Indonesia, which has no signature, which has no standing whatsoever, is more important than Obama’s birth certificate or our immigration law.”

Berg’s filings made other claims that have shown up in anti-Obama lawsuits and in the proliferation of “birther” Website. One relies on an audio tape of Obama’s step-grandmother Sarah Obama, who lives in Kenya, being goaded into saying (through a translator) that the future president was born in Kenya before quickly correcting herself. (A doctored version of this tape, which cuts off before the retraction, is posted on YouTube.) Another claim: Obama traveled to Pakistan in 1981, when it was illegal for an American to do so, suggesting that he used a non-American passport. The problem is that there never was any such ban.

“We have no record of any travel ban between America and Pakistan during that period or since,” said Noel Clay, a spokesman for the State Department.

“We got that from someplace,” Berg told TWI on Thursday. In an email, he added his paralegal was “reviewing” his files on Pakistan. Yet the false claim appears in Orly Taitz’s lawsuit on behalf of perennial presidential candidate Alan Keyes, which argues that Obama visited Pakistan “when entrance to Pakistan was banned to Americans, Christians and Jews,” proof that he gave up his American citizenship.

In October 2008, when Berg v. Obama et al was dismissed for lack of standing, the attorney told sympathetic reporters that the DNC had “admitted” the truth about Obama’s citizenship by not rebutting his claims. Joseph Sandler, who filed motions to dismiss Berg’s case and other Obama citizenship lawsuits as general counsel, explained why claims like these are never debunked by lawyers for the president.

“When you file a motion to dismiss, to try to get the case thrown out before any factual inquiry is made, the facts that the plaintiffs put into their complaint are assumed to be true,” said Sandler. “You have to show that even if the facts were true, they don’t have a case.”

As a result of that, extremely questionable theories and “facts” have become linchpins of ‘birther’ theories. ‘Birthers’ who refuse to acknowledge the legitimacy of Obama’s Certificate of Live Birth often cite the expertise of “Dr. Ron Polarik,” a self-described “expert in computer graphics” who maintains a blog at Townhall.com and has recorded a video, in which his face and voice are blurred, explaining how the image was “forged” with Adobe Photoshop. “Polarik” submitted an affidavit in support of Orly Taitz’s Keyes case that is signed “XXXXXXXXXXX,” making it inadmissible.

“If it ever comes down to it,” explained Gary Kreep, another lawyer for Keyes, “we’ll use his real name.”

Some anti-Obama claims take the issue entirely out of the hands of the president or Hawaii officials. Carl Swensson, a conservative activist from Georgia, has organized “Citizens’ Grand Juries” that have indicted the president for treason. Mario Apuzzo, a New Jersey attorney, has sued Obama on the grounds that he never was, and never could be, a “natural born” citizen. Both men pass over precedent for “The Law of Nations,” the 1758 treatise by the 18th century French scholar Emerich de Vattel. In one translation, de Vattel writes that “the natives, or natural-born citizens, are those born in the country, of parents who are citizens.” That’s enough for some Obama ‘birthers’ to say that Obama might be a citizen of Kenya–as one constituent of Rep. Mike Castle (R-Del.) put it–but he cannot be a natural born citizen of the United States. “It’s what the founding fathers used,” explained Swensson.

Constitutional scholars consider this a dubious argument at best. “The framers of the 14th Amendment thought about this,” explained Elizabeth Wydra, chief counsel for the Constitutional Accountability Center. “They wanted to make sure that the children of slaves who were brought here illegally, slaves who were brought into this country after the end of the slave trade, would be citizens.”

Apuzzo is not convinced. He argued that the founders wrote the phrase “natural born citizen” for a reason; to make sure that no one with “blood ties” to another country could become president. He speculated what might happen if Gov. Bobby Jindal (R-La.), whose parents were Indian, became president. “India is a nuclear power. Here comes the president, who says we have to go in and attack Pakistan. Are we doing that because we are defending India’s interests? You just don’t know. You can’t have Constitutional rule if you allow this.”

Because of the dismissal tactics used by lawyers for the president, John McCain, and both political parties, believers in these various theories and readings of the Constitution argue that they have never been proven wrong. Although Rep. John Campbell (R-Calif.) explained his support of a House bill that would require copies of birth certificates from presidential candidates by saying it would “put all this to rest,” the very frivolity and obscurity of the challenges to Obama suggest the beginning of a conspiracy theory that will never be debunked to the satisfaction of its believers.

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Josh Kraushaar notices that Republicans have gotten the U.S. Senate candidates they wanted in New Hampshire and Illinois, where they “lacked a deep bench of viable recruits — and their political hopes were largely dependent on one specific candidate running.” This feeds this week’s meme that Republican candidate recruiting is taking off, and the party is looking at a comeback after two disastrous election cycles.

Two side notes. One, the story of the party’s Senate recruiting is the story of moderates being enticed to run in blue states. If Republicans perform well in 2010, they’ll add Mike Castle (Delaware), Mark Kirk (Illinois), Charlie Crist (Florida) and Kelly Ayotte (New Hampshire) to the Senate. That would be a net gain of two seats, with two candidates who supported cap-and-trade legislation, one who supported the stimulus and one who was re-appointed by a Democratic governor. If the party scores an upset in California, it would be with Carly Fiorina, a pro-choice moderate who was silenced by the McCain campaign after angering social conservatives. who was thrown under the bus by the McCain campaign after a series of gaffes.

Second note: The White House failed to get Lisa Madigan to run in Illinois and Roy Cooper to run in North Carolina, but it got the candidates it wanted in Missouri, Kentucky, Ohio and New Hampshire. For all the attention paid to Rep. Carolyn Maloney’s (D-N.Y.) run in New York, the White House scared two potential candidates out of the field to help Sen. Kirsten Gillibrand (D-N.Y.). Rep. Joe Sestak’s (D-Pa.) primary challenge in Pennsylvania doesn’t seem to be creating an opening for former Rep. Pat Toomey (R-Pa.). It all seems like slightly less success than George W. Bush had in 2002 Senate race recruitments, but much more than Bill Clinton had in 1994 races. In other words, pretty average.

Right after yesterday’s meeting at the White House, after being personally thanked by President Obama for his role in getting discussion started, Sen. John McCain (D-Ariz.) told reporters that a guest worker program has to be be part of any immigration bill. He then took a dig at labor unions, which generally oppose guest worker programs: “I would expect the president of the United States to put his influence on the unions in order to change their position,” McCain said.

President Obama himself made no promises at that meeting, noting only that he agreed there are differences of opinion but he’ll try to work through them.

White House chief of staff Rahm Emanuel, meanwhile, told reporters earlier in the day that there isn’t enough support for an immigration bill this year.

“If the votes were there, you wouldn’t need to have the meeting,” he said.

After leaving the Marine Corps, I joined the monumental fight to end the occupations of Iraq and Afghanistan, bring our troops home to defend America, and restore a Constitutional foreign policy. Having won the public to our side, it is time we take the fight to the capitol, to the real enemies of the Constitution. Posturing against war while voting to fund it is unacceptable! Tragically, we still have a government that behaves like it owns us, rather than serves us… We need rallying points to keep our movement invigorated and growing, and if a run for Congress from my home town of Santa Fe can serve as one, I will gladly step up.

The 3rd district is safe Democratic turf — President Obama carried it by 23 points over Sen. John McCain (R-Ariz.) while new Rep. Ben Lujan (D) carried the open seat by 27 points. But it has a history of big third party votes, and an anti-war independent candidate won 13 percent of the vote in 2008. Kokesh has enough of a national following (he has spoken at many Ron Paul events) to attract some attention, but unless he raises a lot of money, this might be the latest example of the Democratic base moving on from Iraq War politics and supporting a Democrat despite the slow progress in ending the war.

Sebelius, who will step down from her current job as the governor of Kansas, had come under fire from the right because of her support for abortion rights. On Twitter, Sen. John McCain (R-Ariz.) announced he had another reason for opposing her nomination:

SenJohnMcCainvoted against Sebelius – already moving towards socialized auto companies, we don’t need socialized medicine!

Sens. Joseph Lieberman (I-Conn.), Lindsey Graham (R-S.C.) and even John McCain (R-Ariz.) — the nation’s most famous torture victim — on Wednesday released a joint statement saying that prosecuting Bush administration officials for their legal opinions would have a “deeply chilling effect” on future administrations receiving legal advice. And an investigatory commission, they said, would “focus on the mistakes of the past” instead of “looking forward to solutions.”

Meanwhile, Sen. Patrick Leahy (D-Vt.) reiterated his call for a bipartisan “Commission of Inquiry”, and Sen. Russ Feingold (D-Wis.) wrote to President Obama urging him to consider prosecuting both the lawyers who provided legal justification and some of those who carried out the techniques they sanctioned.

At the grassroots level, the American Civil Liberties Union, Moveon.org, Democrats.com, Firedoglake.com, the Center for Constitutional Rights and a broad coalition of other advocacy groups will present Holder with petitions this afternoon, containing over 250,000 signatures, demanding that an independent prosecutor be appointed to conduct a criminal investigation of the use of torture.

As I noted in my story this morning, Obama has not ruled out prosecutions of the lawyers and architects of abusive interrogation policies, saying it will be up to Holder to decide how to proceed. Still, it seems clear from his recent statements that he’d prefer to avoid a full-blown investigation, be it criminal or congressional.