Well, color us surprised! Just ten days ago, we reported (cynically) that Judge Richard Leon, who was appointed by President George W. Bush, had begun closed door habeas hearings for six Algerian detainees being held at Guantanamo. Included in this six, was Lakhdar Boumediene, whose Supreme Court case, Boumediene v. Bush, made it possible for these men to file habeas petitions. We did not have high hopes for a positive outcome. Turns out, our fears were unfounded.
Today, Judge Leon ordered the release of five of the six Algerians, claiming that the evidence against them may have been strong enough to question them, but not to hold them. According to his opinion, “to rest on so thin a reed would be inconsistent with this court’s obligation.” He ordered that the government release the men “forthwith” and encouraged it not to appeal the decision.
Judge Leon’s request that the government consider not appealing his decision is rather telling. For years, detainees have been seeking help from the courts, only to have the government delay their release while it looked for loop holes. Just last month, another judge ordered the release of 17 Uighurs, who the government had already said pose no threat. Unfortunately for the Uighurs, President Bush did not like being told what to do with his own detainees, and has appealed the decision to the DC Circuit Court of Appeals.
Still, despite efforts by the Bush administration to get around the courts, it has been rebuked at every stage. Even its own appointees (i.e. Judge Leon) refuse to get behind its detention policies. Today’s decision was not only the culmination of a six year battle for the freedom of these Algerians, but also a victory in the fight to restore habeas rights to all detainees at Guantanamo Bay.
Thursday, November 20, 2008
Monday, November 17, 2008
Battle over Obama Judges Already Heating Up
Sixty-three days before President-elect Barack Obama takes office, discussions about his judicial selection program are already heating up. As President Bush has shown, and we have repeatedly claimed, one of a president’s most lasting legacies is the one he leaves on the bench. While the president serves for at most eight years, his judges can stay on the bench for decades.
Considering the number of highly conservative and fairly young justices that President Bush has appointed, the vacancies that are left for President-elect Obama to fill are that much more crucial. Both sides are speculating about the kinds of judges our new president will pick. Progressive groups, including Alliance for Justice, are hoping that he will select jurists in the mold of Thurgood Marshall and Earl Warren. Conservatives meanwhile, are gearing up for battle.
Ironically enough, those same senators who cried “Obstruction!” any time one of President Bush's nominees was questioned are now preemptively preparing to block potential Obama appointees. Apparently, these senators have adopted the mantra of change for themselves, or at least changing their tune when it suits their ideological agenda, anyway. After all, for eight years, they’ve argued that the president’s nominees demand respect and should at least receive an up-or-down vote. But before a single candidate is put forward, Republican senators are already talking filibuster.
Senator Jeff Sessions (R-AL), a member of the Senate Judiciary Committee told the Washington Times that “it appears [President-elect Obama] is more committed to the appointment of activist judges than even President Clinton.” Breaking out the empty rhetoric of judicial activism already? That must be some sort of record. There hasn’t even been a nomination yet! Maybe we could all hold out on condemning President-elect Obama’s nominees until he at least takes office?
Considering the number of highly conservative and fairly young justices that President Bush has appointed, the vacancies that are left for President-elect Obama to fill are that much more crucial. Both sides are speculating about the kinds of judges our new president will pick. Progressive groups, including Alliance for Justice, are hoping that he will select jurists in the mold of Thurgood Marshall and Earl Warren. Conservatives meanwhile, are gearing up for battle.
Ironically enough, those same senators who cried “Obstruction!” any time one of President Bush's nominees was questioned are now preemptively preparing to block potential Obama appointees. Apparently, these senators have adopted the mantra of change for themselves, or at least changing their tune when it suits their ideological agenda, anyway. After all, for eight years, they’ve argued that the president’s nominees demand respect and should at least receive an up-or-down vote. But before a single candidate is put forward, Republican senators are already talking filibuster.
Senator Jeff Sessions (R-AL), a member of the Senate Judiciary Committee told the Washington Times that “it appears [President-elect Obama] is more committed to the appointment of activist judges than even President Clinton.” Breaking out the empty rhetoric of judicial activism already? That must be some sort of record. There hasn’t even been a nomination yet! Maybe we could all hold out on condemning President-elect Obama’s nominees until he at least takes office?
Friday, November 14, 2008
Conservative Media Employ Gitmo Scare Tactics
For more than six years, many in the legal community have vocally opposed President Bush’s policy of detaining so-called “enemy combatants” at Guantanamo Bay. In fact, the Supreme Court has thrice rebuked his claims of executive prerogative. Unfortunately, the legal black-hole that his policies have created proved too difficult for even him to dig out of. Now, the problem will be left for President-elect Barack Obama to handle.
During the campaign, Obama stated several times that he intended to close the detention camp at Guantanamo, calling it a stain on America’s image abroad. Unfortunately, some members of the conservative media have jumped on this, claiming that the president-elect is weak on security issues. Our friends over at Media Matters were particularly troubled by a segment on Fox News’ Hannity and Colmes.
Those familiar with the issue know that many of the detainees being held at Guantanamo are far from dangerous terrorists. In fact, several (including 17 Uighurs) have been cleared for release by the Bush administration, but have no where to go. By labeling them as suspected enemy combatants, the U.S. has made it nearly impossible to convince any nation to take them in. And just so we’re clear, President-elect Obama never suggested that he would release dangerous combatants. He said that his team would examine the evidence against everyone, and respond appropriately. But as we’ve seen so often from the right, nuance doesn’t sell nearly as well as fear.
During the campaign, Obama stated several times that he intended to close the detention camp at Guantanamo, calling it a stain on America’s image abroad. Unfortunately, some members of the conservative media have jumped on this, claiming that the president-elect is weak on security issues. Our friends over at Media Matters were particularly troubled by a segment on Fox News’ Hannity and Colmes.
Amid reports that President-elect Barack Obama's transition team is developing a plan for closing the U.S. military-run detention facility at Guantánamo Bay, Cuba, conservative media figures have baselessly asserted that such a plan would result in the release of terrorists and place the country at risk… Fox News contributor Dick Morris claimed on the October 10 edition of Hannity & Colmes that “Obama's going to close Gitmo, and all of those people are gonna be back in the field, fighting against us.” On the same day, nationally syndicated radio host Lars Larson stated that the detainees are “garden-variety terrorists who I don't think are entitled to treatment under ... the American system of justice.”
Those familiar with the issue know that many of the detainees being held at Guantanamo are far from dangerous terrorists. In fact, several (including 17 Uighurs) have been cleared for release by the Bush administration, but have no where to go. By labeling them as suspected enemy combatants, the U.S. has made it nearly impossible to convince any nation to take them in. And just so we’re clear, President-elect Obama never suggested that he would release dangerous combatants. He said that his team would examine the evidence against everyone, and respond appropriately. But as we’ve seen so often from the right, nuance doesn’t sell nearly as well as fear.
Thursday, November 13, 2008
Wall Street Journal Will NOT Save the Whales
It’s always interesting (so to speak) to read the Wall Street Journal’s take on Supreme Court cases. What’s that saying about knowing thy enemy? Anyway, today’s editorial section contained a particularly riveting piece entitled “The Greens Get Harpooned.” Apparently, the Journal’s editorial board finds efforts to protect endangered species laughable, and considers any foray by the justices into “military matters” the definition of leftwing recklessness.
The case to which today’s editorial refers, is NRDC v. Winter – a suit brought by the Natural Resources Defense Council to limit the Navy’s use of long-range sonar in military training programs. The Council argues that the sonar is harmful to marine life, particularly marine mammals. The Navy argues that these sonar exercises are necessary to ensure military readiness – specifically in regards to protecting the U.S. from submarine warfare.
First of all, we’d like to point out that the Navy won the case. But apparently the Journal isn’t concerned with being a poor-winner. Secondly, we take issue with their claim that the Navy’s long-range sonar poses a “nonexistent threat” to marine life. There is plenty of evidence to suggest that a) increased trans-oceanic shipping has left whales unable to hear the calls of potential mates and b) the particularly strong sound-waves used in long-range sonar disorients marine mammals (dolphins and whales) resulting in increased instances of beaching. The Navy itself acknowledges that their training exercises would likely result in the death of 170,000 marine mammals.
Apart from the total disregard for environmental concerns, we find it interesting that the Journal seems to think that the Court’s so-called “liberal bloc” is engaging in an all-out assault on the president’s military authority. We can only assume that the paper’s editorial board is not-so-subtly referring to last term’s decision in Boumediene v. Bush – widely renounced by conservatives as a usurpation of executive authority.
Interestingly enough, these critics never seem to be bothered by President Bush’s total lack of regard for constitutional limits on his authority – all those annoying checks and balances. Never mind that the president circumvented the justice system by creating the Guantanamo Bay detention camp. Never mind that he ignored centuries of precedent when formulating his interrogation policy. All that the Journal seems to care about is that the Court is encroaching on “wartime military matters.”
Well, as far as this case is concerned, we’d like to put the Journal editorial board at ease. First of all, NRDC was simply asking that the Navy turn off their sonar machines when whales are spotted nearby. Secondly, despite the Journal’s assertion that the Court’s incursion into Navy sonar policy threatens our military capability during wartime, we are pretty sure that the insurgents in Iraq and Afghanistan haven’t yet obtained long-range submarines.
The case to which today’s editorial refers, is NRDC v. Winter – a suit brought by the Natural Resources Defense Council to limit the Navy’s use of long-range sonar in military training programs. The Council argues that the sonar is harmful to marine life, particularly marine mammals. The Navy argues that these sonar exercises are necessary to ensure military readiness – specifically in regards to protecting the U.S. from submarine warfare.
First of all, we’d like to point out that the Navy won the case. But apparently the Journal isn’t concerned with being a poor-winner. Secondly, we take issue with their claim that the Navy’s long-range sonar poses a “nonexistent threat” to marine life. There is plenty of evidence to suggest that a) increased trans-oceanic shipping has left whales unable to hear the calls of potential mates and b) the particularly strong sound-waves used in long-range sonar disorients marine mammals (dolphins and whales) resulting in increased instances of beaching. The Navy itself acknowledges that their training exercises would likely result in the death of 170,000 marine mammals.
Apart from the total disregard for environmental concerns, we find it interesting that the Journal seems to think that the Court’s so-called “liberal bloc” is engaging in an all-out assault on the president’s military authority. We can only assume that the paper’s editorial board is not-so-subtly referring to last term’s decision in Boumediene v. Bush – widely renounced by conservatives as a usurpation of executive authority.
Interestingly enough, these critics never seem to be bothered by President Bush’s total lack of regard for constitutional limits on his authority – all those annoying checks and balances. Never mind that the president circumvented the justice system by creating the Guantanamo Bay detention camp. Never mind that he ignored centuries of precedent when formulating his interrogation policy. All that the Journal seems to care about is that the Court is encroaching on “wartime military matters.”
Well, as far as this case is concerned, we’d like to put the Journal editorial board at ease. First of all, NRDC was simply asking that the Navy turn off their sonar machines when whales are spotted nearby. Secondly, despite the Journal’s assertion that the Court’s incursion into Navy sonar policy threatens our military capability during wartime, we are pretty sure that the insurgents in Iraq and Afghanistan haven’t yet obtained long-range submarines.
Wednesday, November 12, 2008
Court Hears Another Religious Establishment Case
Today, the Supreme Court heard oral arguments in Pleasant Grove City v. Summum. The case centers on the refusal by Pleasant Grove City officials of a request by Summum, a religious group, to place a monument in the city’s park. The park already contains a monument of the Ten Commandments (donated by another private group) and the Summum wants to erect another that honors the “Seven Aphorisms of Summum,” which according to their beliefs, complements the commandments.
The Tenth Circuit Court of Appeals sided with the religious group, stating that the government cannot permit one religious organization to place a monument (of religious meaning) in a public park, but refuse to allow another to do the same. That, it says, would be showing preference to one religion over another. Pleasant Grove officials however, supported by several federal, state and city governments, appealed the Tenth Circuit’s decision.
Pleasant Grove City v. Summum is the first of what could be two cases heard this term that touch on legal issues surrounding the placement of monuments with religious significance on public (government owned) land. See our early post on the government’s request that the Supreme Court reconsider the Ninth Circuit’s decision in Buono v. Kempthorne here.
The Tenth Circuit Court of Appeals sided with the religious group, stating that the government cannot permit one religious organization to place a monument (of religious meaning) in a public park, but refuse to allow another to do the same. That, it says, would be showing preference to one religion over another. Pleasant Grove officials however, supported by several federal, state and city governments, appealed the Tenth Circuit’s decision.
Pleasant Grove City v. Summum is the first of what could be two cases heard this term that touch on legal issues surrounding the placement of monuments with religious significance on public (government owned) land. See our early post on the government’s request that the Supreme Court reconsider the Ninth Circuit’s decision in Buono v. Kempthorne here.
Corporate Argument Against Preemption?
Our friends over at the PopTort Blog sent us a rather interesting article from Forbes recently. One might assume that with their rather large corporate constituency, Forbes would be supportive of efforts by the Food and Drug Administration and the Chamber of Commerce to push preemption of state jury verdicts that hold corporations accountable and establish stronger consumer protections. Interestingly enough, however, the magazine argues that giving full regulatory authority to the FDA could hurt not only consumers, but drug companies as well.
Reporter Matthew Harper argues in his piece “Could Preemption Hurt Drug Companies?” that increased criticism of the FDA, particularly following its seemingly premature approval of drugs like Vioxx and Avandia, has already made agency officials overly wary when considering new drugs. While this may sound like good news (we would all hope that the FDA is vigilant in its approval of new drugs), at least in Mr. Harper’s view, this overly cautious approach makes the regulatory processes facing drug manufacturers more daunting - chilling efforts to formulate new and important medicines.
Mr. Harper goes on to state that if the already besieged FDA were to be faced with the sole responsibility of ensuring the safety of all drugs, with no responsibility shouldered by the pharmaceutical companies, this chilling effect would only worsen. “Getting rid of drug lawsuits could make the FDA more vulnerable to political pressure -- because politicians could emphasize that the agency had been given the absolute last word on a drug's safety.”
According to this argument, “the immediate threat to the drug industry’s survival isn’t lawsuits, which pharma has shown it can beat. It’s the fact that safety controversies have demoralized the FDA, made it defensive and made it impossible to get new drugs approved. If the preemption could increase the pressure on the FDA, which at least seems plausible, drug companies would actually be better off without it.”
While we wouldn't necessarily agree that the FDA is currently too cautious in approving new treatments and drugs, we certainly agree that responsibility for their safety should be shared. The FDA lacks both adequate funding and staff resources to take on this Herculean task alone. Any attempts to make this argument digestible by corporate types, is certainly helpful. Despite what the Chamber of Commerce and its warriors for tort reform claim, state tort law has always served to complement government regulation. To do away with this long-established principle without explicit Congressional approval would be hugely irresponsible.
Reporter Matthew Harper argues in his piece “Could Preemption Hurt Drug Companies?” that increased criticism of the FDA, particularly following its seemingly premature approval of drugs like Vioxx and Avandia, has already made agency officials overly wary when considering new drugs. While this may sound like good news (we would all hope that the FDA is vigilant in its approval of new drugs), at least in Mr. Harper’s view, this overly cautious approach makes the regulatory processes facing drug manufacturers more daunting - chilling efforts to formulate new and important medicines.
Mr. Harper goes on to state that if the already besieged FDA were to be faced with the sole responsibility of ensuring the safety of all drugs, with no responsibility shouldered by the pharmaceutical companies, this chilling effect would only worsen. “Getting rid of drug lawsuits could make the FDA more vulnerable to political pressure -- because politicians could emphasize that the agency had been given the absolute last word on a drug's safety.”
According to this argument, “the immediate threat to the drug industry’s survival isn’t lawsuits, which pharma has shown it can beat. It’s the fact that safety controversies have demoralized the FDA, made it defensive and made it impossible to get new drugs approved. If the preemption could increase the pressure on the FDA, which at least seems plausible, drug companies would actually be better off without it.”
While we wouldn't necessarily agree that the FDA is currently too cautious in approving new treatments and drugs, we certainly agree that responsibility for their safety should be shared. The FDA lacks both adequate funding and staff resources to take on this Herculean task alone. Any attempts to make this argument digestible by corporate types, is certainly helpful. Despite what the Chamber of Commerce and its warriors for tort reform claim, state tort law has always served to complement government regulation. To do away with this long-established principle without explicit Congressional approval would be hugely irresponsible.
Monday, November 10, 2008
Bush Judge Begins First Habeas Hearings
We’re not quite sure this is what Lakhdar Boumediene had in mind when he asked the United States Supreme Court to decide whether he and his fellow Guantanamo detainees had the right to challenge their detention in federal court. He won his case in June, but early signs still leave much doubt about the fairness of the government’s handling of these cases.
On Thursday last week, District Court Judge Richard Leon began habeas hearings for six Algerian men who have been held at Guantanamo since 2002. Judge Leon, who was appointed by President George W. Bush, ruled that these men had no right to habeas corpus in 2005, but was overruled by the Supreme Court’s latest decision in Boumediene v. Bush. Forced to reconsider, Judge Leon ruled two weeks ago that only those who directly support hostile acts against the U.S. can be held indefinitely as enemy combatants.
While this definition is certainly more favorable than some of the lax associations used to justify indefinite detainment by the Bush administration, it is still quite broad. As the first few days of the Algerians’ habeas hearing displays, court procedures are still stacked against the accused. As the New York Times reports, the men have not been allowed to attend their own hearing, will not be allowed to hear classified evidence against them, and due to technical problems, could not even hear opening statements by their lawyers.
Call us crazy, but this still sounds like a kangaroo court to us!
On Thursday last week, District Court Judge Richard Leon began habeas hearings for six Algerian men who have been held at Guantanamo since 2002. Judge Leon, who was appointed by President George W. Bush, ruled that these men had no right to habeas corpus in 2005, but was overruled by the Supreme Court’s latest decision in Boumediene v. Bush. Forced to reconsider, Judge Leon ruled two weeks ago that only those who directly support hostile acts against the U.S. can be held indefinitely as enemy combatants.
While this definition is certainly more favorable than some of the lax associations used to justify indefinite detainment by the Bush administration, it is still quite broad. As the first few days of the Algerians’ habeas hearing displays, court procedures are still stacked against the accused. As the New York Times reports, the men have not been allowed to attend their own hearing, will not be allowed to hear classified evidence against them, and due to technical problems, could not even hear opening statements by their lawyers.
Call us crazy, but this still sounds like a kangaroo court to us!
Wednesday, November 5, 2008
Day of Celebration and Reflection
On this, the day after the most important election of our generation, Americans everywhere are beaming with pride at what they’ve accomplished. One hundred years after the formation of the NAACP, more than fifty years after the landmark decision in Brown v. the Board of Education and forty years after Martin Luther King’s “I Have a Dream” speech, the United States has elected its first African American president.
But on this auspicious and historic day, we must continue to focus on the work that lies ahead, especially with regard to federal court appointments. Our courts still teem with ultra-conservative Bush appointees. We anticipate that there will be 15 vacancies on the U.S. Circuit Courts of Appeals and 36 district court vacancies as of Inauguration Day. We also expect at least one Supreme Court vacancy before President-Elect Obama completes his first term. As the new administration selects the men and women who will fill these slots on the federal bench, we must work to ensure that his nominees will keep faith with our nation's core constitutional values of liberty, equality, and justice for all.
Today as AFJ President Nan Aron looked to the future, she observed, “As the hard work of the transition begins and the short lists are compiled, the Obama administration should look to nominate individuals who come from diverse backgrounds and different experiences -- such as governors, attorneys general and state legislators. But most importantly, President-Elect Obama should nominate people with an expansive vision of constitutional freedoms and equality.”
But on this auspicious and historic day, we must continue to focus on the work that lies ahead, especially with regard to federal court appointments. Our courts still teem with ultra-conservative Bush appointees. We anticipate that there will be 15 vacancies on the U.S. Circuit Courts of Appeals and 36 district court vacancies as of Inauguration Day. We also expect at least one Supreme Court vacancy before President-Elect Obama completes his first term. As the new administration selects the men and women who will fill these slots on the federal bench, we must work to ensure that his nominees will keep faith with our nation's core constitutional values of liberty, equality, and justice for all.
Today as AFJ President Nan Aron looked to the future, she observed, “As the hard work of the transition begins and the short lists are compiled, the Obama administration should look to nominate individuals who come from diverse backgrounds and different experiences -- such as governors, attorneys general and state legislators. But most importantly, President-Elect Obama should nominate people with an expansive vision of constitutional freedoms and equality.”
Monday, November 3, 2008
Big Week for the Supreme Court
This is certainly a big week for the country, not just because of the historic nature of tomorrow’s vote (we would of course like to encourage everyone to get out to the polls!) but also because the Supreme Court will hear two of the year’s most anticipated cases: Wyeth v. Levine and FCC v. Fox.
In Wyeth, the Court will consider whether Diana Levine, who had her arm amputated after receiving an injection of the anti-nausea medication Phenergan, was allowed to bring a suit against Wyeth in state court or whether state lawsuits are preempted by the Food and Drug Administration’s approval of Phenergan’s warning label. The case could have widespread implications for anyone harmed by prescription drugs. Keep an eye out for an entry we will be posting later today discussing what our staff saw during today’s arguments.
In FCC v. Fox, scheduled for tomorrow, the Court will consider whether the FCC can fine television stations for the airing of even a single expletive. During live airings of award shows, three different celebrities used three different expletives which mere missed by Fox’s censors. The FCC fined the stations, but Fox appealed the decision, claiming that the commission is arbitrary in its issuance of fines and that it cannot be held responsible for single-uses of offensive words.
To learn more about what to expect this term, you can read our 2008-2009 Supreme Court preview here. And we will be sure to keep you posted on any developments in these cases.
In Wyeth, the Court will consider whether Diana Levine, who had her arm amputated after receiving an injection of the anti-nausea medication Phenergan, was allowed to bring a suit against Wyeth in state court or whether state lawsuits are preempted by the Food and Drug Administration’s approval of Phenergan’s warning label. The case could have widespread implications for anyone harmed by prescription drugs. Keep an eye out for an entry we will be posting later today discussing what our staff saw during today’s arguments.
In FCC v. Fox, scheduled for tomorrow, the Court will consider whether the FCC can fine television stations for the airing of even a single expletive. During live airings of award shows, three different celebrities used three different expletives which mere missed by Fox’s censors. The FCC fined the stations, but Fox appealed the decision, claiming that the commission is arbitrary in its issuance of fines and that it cannot be held responsible for single-uses of offensive words.
To learn more about what to expect this term, you can read our 2008-2009 Supreme Court preview here. And we will be sure to keep you posted on any developments in these cases.
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