It’s pretty safe to assume that empathy has never been one of John Yoo’s strong points. The former member of the Justice Department’s Office of Legal Counsel has become a figure of ire for penning the “torture memos,” which authorized the now-famous harsh interrogation techniques for Guantanamo Bay detainees. Now, however, he at least has some idea of what it’s like to be a detainee.
No, he probably hasn’t had a heart-to-heart with a tortured prisoner or taken a crash course in sensitivity. As Talking Points Memo reports, Yoo spent a solid chunk of his Monday afternoon as a detainee himself. Well, sort of. Before he was scheduled to speak at the Ninth Circuit Judicial Conference, Bush II appointee Judge Consuelo Callahan announced, perhaps without choosing her words carefully (or maybe she did), that Yoo would not be attending because he was “unexpectedly detained … for six hours.” The statement was met with hoots of laughter from half the audience that were decidedly unappreciated by the other half.
Unfortunately for those hungry for scandal (or karmic justice), Yoo was not placed on the U.S. terrorist watch list and wrongfully brought to Gitmo. What I glossed over with ellipses was that Yoo was just delayed due to fog, stuck at the Oakland International Airport. Something tells us the accommodations there are a bit more comfortable than the 6-by-8-foot cells at Camp Delta.
Whatever the case, we at Justice Watch hope that the whole ordeal served as something of a learning experience. Perhaps his six hours of eating Cinnabons and hanging out at Hudson News was as torturous to Yoo as waterboarding and sexual humiliation are to the detainees he affected. Somehow we doubt it.
Thursday, July 31, 2008
Bush Judge Rebukes Bush Privilege
U.S. District Court Judge John Bates agreed with House Democrats today and ruled that senior Bush administration officials are not immune from congressional subpoenas. Judge Bates, who was appointed by President Bush in 2001 and tapped by Chief Justice John Roberts to sit on the clandestine FISA court, is clearly no liberal. Still, he recognized the importance of congressional oversight in our system of checks and balances. In his decision he wrote, “The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”
Alliance for Justice President Nan Aron said in statement today that today’s decision “is a victory for our constitutional system of checks and balances.” She continued, “Judge Bates’ ruling was a necessary rebuke to this administration, which has bent, twisted and ignored the law in an effort to assert unfettered executive privilege and power. Alliance for Justice applauds today's decision for placing constitutional prerogatives ahead of partisan politics.”
Alliance for Justice President Nan Aron said in statement today that today’s decision “is a victory for our constitutional system of checks and balances.” She continued, “Judge Bates’ ruling was a necessary rebuke to this administration, which has bent, twisted and ignored the law in an effort to assert unfettered executive privilege and power. Alliance for Justice applauds today's decision for placing constitutional prerogatives ahead of partisan politics.”
Banner Quarter for Exxon, Not So Much for Justice
The Associated Foreign Press is reporting that it's been a fantastic few months for the ExxonMobil Corporation. On top of receiving a huge boon in the form of the Supreme Court’s recent decision to cut the amount of punitive damages it must pay for the notorious Valdez oil spill to just $500 million, the company is also reporting record profits this quarter: $11.68 billion. Yes, that’s $11.68 billion in just three months and coincidentally the largest profits ever recorded by an American company…ever. If that number seems insanely high to any of you, consider this: it reflects their net profits after they set almost $300 million aside to pay the reduced damages set by the Supreme Court’s decision.
Considering the clear hardships that ExxonMobil must be facing (record profits and all), we completely understand why they’d also be requesting reprieve from having to pay interest on its punitive damages. Never mind that the $500 million amount is just about 4% of this quarter’s profits alone, why on earth should they be punished further for their reckless behavior? Of course, one might think it unfair that by dragging the issue through the courts for almost 19 years, the mega-corporation has even further reduced the already dismal award by almost $400 million -- $500 million in 1989 would have been equivalent to over $880 million today. We wouldn’t want to put any undue burdens on poor big oil.
Considering the clear hardships that ExxonMobil must be facing (record profits and all), we completely understand why they’d also be requesting reprieve from having to pay interest on its punitive damages. Never mind that the $500 million amount is just about 4% of this quarter’s profits alone, why on earth should they be punished further for their reckless behavior? Of course, one might think it unfair that by dragging the issue through the courts for almost 19 years, the mega-corporation has even further reduced the already dismal award by almost $400 million -- $500 million in 1989 would have been equivalent to over $880 million today. We wouldn’t want to put any undue burdens on poor big oil.
Empty Chatter From the House Armed Services Committee
What do you get when you mix a disenchanted military prosecutor, a prominent law professor, and a pair of lawyers with opposite viewpoints? Throw in a few obstinate, metaphor-loving Republicans and you’ve got just another day at the House Armed Services Committee. The topic yesterday was the Supreme Court’s Boumediene v. Bush decision and the future of Guantanamo Bay from a “non-governmental perspective.” Giving their testimony were lawyers Stephen Oleskey (who represents Gitmo detainees) and Richard Klingler (who wants to take the matter out of the courts’ hands and see legislation written), Georgetown prof Neal Katyal, and former Chief Prosecutor for the U.S. Air Force Morris Davis. But with the help of ranking member Rep. Duncan Hunter (R-CA), and a couple of boorish Republican members, the hearing often devolved into a symphony of rhetoric.
Rep. Hunter led the way in this regard, trumpeting the need for Gitmo legislation and denouncing the Boumediene decision. He took some jabs at potential future Gitmo court decisions as well, calling it “lawfare over warfare.” That’s odd, because we call that letting the judiciary do its job.
The four witnesses provided answers that were equally entertaining, but often just as muddled. Oleskey stood up the strongest to the questioning, providing careful reasoning against Gitmo legislation and shooting down the backwards logic that came his way. By matter of contrast, Klingler reeled off rhetoric like the best of them. The lawyer certainly didn’t acquit himself well (pun intended) in his claim that legislation should preempt courts from doing their job—his testimony was low on logic and clouded with rhetoric.
It was Davis, however, that made the biggest impact at the hearing. While the military man is anything but a liberal sympathizer (he said the Supreme Court was “meddling” in its review of the 2006 Military Commission Act), he drew on his experience in Guantanamo to articulate just how bad it was there. The supposed “military justice” at Gitmo was, he said, “neither military nor justice.” It was a situation that makes Davis thankful he is now a former military man. “I’m glad my uniform is hanging in my closet,” he said.
Even this kind of frank testimony from an American soldier wouldn’t stop the oratorical fireworks from continuing, this time from Rep. Phil Gingrey (R-GA). Rep. Gingrey—who called himself a “Georgia peach” on “The Colbert Report” —viciously accused the Supreme Court of affording terrorists with the rights of the Constitution, punctuating his rant with a spiteful rhetorical question, “How far will the liberal elite go?” Well, clearly far enough to defend basic constitutional values.
Rep. Hunter tried to delve deeper into the rights-for-the-terrorists theme by questioning each panel member about whether or not the U.S. military would be required to read the Miranda rights to prevent coerced statements from being obtained. It was yet another leading question on this issue, illustrating the typical stubbornness that has pervaded the “right” side of the aisle.
As the hearing wore on, however, Rep. Hunter had many in the audience wishing that he would invoke the right to remain silent.
Rep. Hunter led the way in this regard, trumpeting the need for Gitmo legislation and denouncing the Boumediene decision. He took some jabs at potential future Gitmo court decisions as well, calling it “lawfare over warfare.” That’s odd, because we call that letting the judiciary do its job.
The four witnesses provided answers that were equally entertaining, but often just as muddled. Oleskey stood up the strongest to the questioning, providing careful reasoning against Gitmo legislation and shooting down the backwards logic that came his way. By matter of contrast, Klingler reeled off rhetoric like the best of them. The lawyer certainly didn’t acquit himself well (pun intended) in his claim that legislation should preempt courts from doing their job—his testimony was low on logic and clouded with rhetoric.
It was Davis, however, that made the biggest impact at the hearing. While the military man is anything but a liberal sympathizer (he said the Supreme Court was “meddling” in its review of the 2006 Military Commission Act), he drew on his experience in Guantanamo to articulate just how bad it was there. The supposed “military justice” at Gitmo was, he said, “neither military nor justice.” It was a situation that makes Davis thankful he is now a former military man. “I’m glad my uniform is hanging in my closet,” he said.
Even this kind of frank testimony from an American soldier wouldn’t stop the oratorical fireworks from continuing, this time from Rep. Phil Gingrey (R-GA). Rep. Gingrey—who called himself a “Georgia peach” on “The Colbert Report” —viciously accused the Supreme Court of affording terrorists with the rights of the Constitution, punctuating his rant with a spiteful rhetorical question, “How far will the liberal elite go?” Well, clearly far enough to defend basic constitutional values.
Rep. Hunter tried to delve deeper into the rights-for-the-terrorists theme by questioning each panel member about whether or not the U.S. military would be required to read the Miranda rights to prevent coerced statements from being obtained. It was yet another leading question on this issue, illustrating the typical stubbornness that has pervaded the “right” side of the aisle.
As the hearing wore on, however, Rep. Hunter had many in the audience wishing that he would invoke the right to remain silent.
Daily Dose
- Editorials: No Justice at Justice Department [Seattle Times, Boston Globe, Dallas Morning News]
- Rove Cited For Contempt [WP, AP]
- Hamdan Was Coerced, Lawyers Say [NYT]
- Fourth Circuit Judge Sworn In [WP]
- Op-Ed: On the Merits Alone [Washington Times]
Wednesday, July 30, 2008
Media Does Matter
As we reported on Monday, the Justice Department’s Inspector General, along with the Office for Professional Responsibility, released a report stating that the DOJ had illegally used political considerations in hiring career attorneys. One of the most disturbing revelations found in the report was a section discussing how a senior terrorism official had been passed over for a position because of his wife’s political beliefs. Instead, the department promoted a junior staffer with no terrorism experience whatsoever.
While we found this report alarming, major news outlets seemed unaffected. According to Media Matters, a terrific organization which promotes fair and balanced (Sorry Mr. O’Reilly!) news coverage, “evening news broadcasts on CBS and NBC failed to cover” the report and ABC’s World News “devoted less than 30 seconds” to it.
Truthfully, we’re not sure how to take this. If these news programs did not cover the issue because so much has already been released regarding the rampant politicization at Justice, that is…disheartening to say the least. If they ignored the story because they felt that it wasn’t important, then we have a problem. What could possibly be more serious than the politicization of our justice system?
While we found this report alarming, major news outlets seemed unaffected. According to Media Matters, a terrific organization which promotes fair and balanced (Sorry Mr. O’Reilly!) news coverage, “evening news broadcasts on CBS and NBC failed to cover” the report and ABC’s World News “devoted less than 30 seconds” to it.
Truthfully, we’re not sure how to take this. If these news programs did not cover the issue because so much has already been released regarding the rampant politicization at Justice, that is…disheartening to say the least. If they ignored the story because they felt that it wasn’t important, then we have a problem. What could possibly be more serious than the politicization of our justice system?
Monday, July 28, 2008
Justice Delayed, Employment Denied
Just one week after Attorney General Michael Mukasey urged Congress to undermine the Supreme Court’s recent Boumediene decision – displaying once and for all where his true allegiance lies – the Justice Department has released another report outlining (yes, again) just how rampant the politicization has become under the Bush administration. Of course, the report simultaneously chastises DOJ employees and absolves the department of any real responsibility by placing the blame for these partisan policies squarely on the shoulders of former Justice employees.
Last month, a report was released detailing how political considerations tainted the selection process for the Justice Department’s esteemed intern and honor programs. Today, a new joint report released by the Inspector General and the Office of Professional Responsibility acknowledged that these illegal partisan hiring practices extended to immigration judges and prosecutors as well. According to the Washington Post, department officials went so far as to ask prospective career attorneys – who by definition are supposed to operate independently of the president – “What is it about George W. Bush that makes you want to serve him?”
As disturbing as these revelations are, they are also dishearteningly banal. Accusations of politicization at the DOJ, and throughout the administration, have been widespread for years. Equally unsurprising is how today’s report manages to both excoriate and exonerate department officials at the same time. Two of the officials fingered in the report, Monica Goodling and Kyle Sampson, left the department in 2007, and AG Mukasey swears that new policies have already been put in place to ensure that improper political considerations play no part in the hiring of future career attorneys. Of course, the Hatch Act already made such considerations illegal, but we are glad to see that the attorney general has decided to actually enforce it.
Unfortunately, while Goodling and Sampson might be long gone, their legacy lives on -- the attorneys they hired based on political considerations still roam the halls of the Justice Department.
Last month, a report was released detailing how political considerations tainted the selection process for the Justice Department’s esteemed intern and honor programs. Today, a new joint report released by the Inspector General and the Office of Professional Responsibility acknowledged that these illegal partisan hiring practices extended to immigration judges and prosecutors as well. According to the Washington Post, department officials went so far as to ask prospective career attorneys – who by definition are supposed to operate independently of the president – “What is it about George W. Bush that makes you want to serve him?”
As disturbing as these revelations are, they are also dishearteningly banal. Accusations of politicization at the DOJ, and throughout the administration, have been widespread for years. Equally unsurprising is how today’s report manages to both excoriate and exonerate department officials at the same time. Two of the officials fingered in the report, Monica Goodling and Kyle Sampson, left the department in 2007, and AG Mukasey swears that new policies have already been put in place to ensure that improper political considerations play no part in the hiring of future career attorneys. Of course, the Hatch Act already made such considerations illegal, but we are glad to see that the attorney general has decided to actually enforce it.
Unfortunately, while Goodling and Sampson might be long gone, their legacy lives on -- the attorneys they hired based on political considerations still roam the halls of the Justice Department.
Daily Dose
- Editorial: The Censors Lose in Court [NYT]
- Hamdan Trial Update [WP, LA Times]
- Editorial: Will the Supreme Court Reconsider? [LA Times]
- Heller Backfire [Chicago Tribune]
- SCOTUS Blasted For Being Pro-Business [Washington Times]
- Gonzales Under Fire in DoJ Scandal [AP]
The Week Ahead
Have the midsummer blues caught up with you yet? If the heat, mosquitoes or boredom are starting to get to you, boy have we got some diversions for you. Well, DC-style diversions, anyway.
As far as Justice Watch is concerned, the week starts and ends with Gitmo, as the House Armed Services Committee will hold a pair of hearings entitled “Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay.” Part I will take place Wednesday morning, and will feature “Non-Governmental Perspectives” from a quartet of witnesses, including a Georgetown law professor, a couple of private practice lawyers, and, as the main event, the former Chief Prosecutor of the Office of Military Commissions, Colonel Morris Davis. Thursday afternoon’s Part II will trot out several Bush cronies--who apparently are so scared of opposition that they wanted a hearing of their own--for an “Administration Perspective” that should prove to be infuriating.
On the other side of the Capitol, the Senate Judiciary Committee will convene Wednesday morning to discuss a topic that has been well-worn on the Hill: the hearing “Politicized Hiring at the Department of Justice” will feature testimony from Inspector General Glenn A. Fine. If Mr. Fine breaks with the attorney general’s approach for congressional hearings and decides to provide full and honest answers, we could be in for a treat. We’re not holding our breath, but the DoJ report released today should provide a fair amount of fireworks.
The scope will be a little narrower on Thursday afternoon as the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties gets together. The topic will be the State Secrets Protection Act of 2008, a bill authored by Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA) in January. If the intricacies of executive privilege are your cup of tea, pencil this hearing into your Blackberry.
As the calendar slowly flips to August and recess approaches, we hope you will consider this blog an alternate midsummer destination. Because Congress may rest, but Justice Watch never does.
As far as Justice Watch is concerned, the week starts and ends with Gitmo, as the House Armed Services Committee will hold a pair of hearings entitled “Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay.” Part I will take place Wednesday morning, and will feature “Non-Governmental Perspectives” from a quartet of witnesses, including a Georgetown law professor, a couple of private practice lawyers, and, as the main event, the former Chief Prosecutor of the Office of Military Commissions, Colonel Morris Davis. Thursday afternoon’s Part II will trot out several Bush cronies--who apparently are so scared of opposition that they wanted a hearing of their own--for an “Administration Perspective” that should prove to be infuriating.
On the other side of the Capitol, the Senate Judiciary Committee will convene Wednesday morning to discuss a topic that has been well-worn on the Hill: the hearing “Politicized Hiring at the Department of Justice” will feature testimony from Inspector General Glenn A. Fine. If Mr. Fine breaks with the attorney general’s approach for congressional hearings and decides to provide full and honest answers, we could be in for a treat. We’re not holding our breath, but the DoJ report released today should provide a fair amount of fireworks.
The scope will be a little narrower on Thursday afternoon as the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties gets together. The topic will be the State Secrets Protection Act of 2008, a bill authored by Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA) in January. If the intricacies of executive privilege are your cup of tea, pencil this hearing into your Blackberry.
As the calendar slowly flips to August and recess approaches, we hope you will consider this blog an alternate midsummer destination. Because Congress may rest, but Justice Watch never does.
Friday, July 25, 2008
Senate Judiciary Committee Investigates Disturbing Court Trend
It’s not often the Senate Judiciary Committee convenes to discuss the repercussions of a drunk driving case, but on Wednesday, they did just that. Of course, the Exxon-Valdez oil spill, caused by a drunken ship captain, is more than your typical DUI. And in the end, the consequences of the recent Exxon v. Baker Supreme Court case—which the hearing was centered around—may have effects as destructive and long-lasting as the oil spill itself. Here’s the quick rundown on Exxon: $5 billion punitive damage award is cut in half by the Ninth Circuit Court of Appeals, and further reduced to just $507 million, bringing the ratio of compensatory to punitive damages to a mere 1:1. And now, Exxon is fighting tooth and nail to further swindle the Alaskans that were adversely affected by the spill, claiming they shouldn’t have to pay interest on the sum.
This claim becomes even more outrageous when you consider the enormous financial toll the spill has taken on the fish industry and on tens of thousands of Alaskan citizens—it didn’t just destroy habitats and wildlife, it destroyed livelihoods as well.
It was a decision with a decidedly pro-business bent, and the hearing (entitled “Courting Big Business: The Supreme Court’s Recent Decisions on Corporate Misconduct and Laws Regulating Corporations”—say that three times fast) was a necessary step. It provided a forum for the voices of Alaskans to be heard, as Osa Schultz, a fisherman from Cordova, took the mic and spoke out against the decision. “As great as our losses are, and they are significant, equating punishment to a multi-billion dollar corporation with the losses of self employed fishermen such as my husband and me, is in no way punishment or deterrent, much less justice,” she said. Schultz added that “Exxon stands to pay pennies on the dollar” for their gross negligence.
Schultz gave a face to the 32,000 Alaskans that filed suit and articulated the economic predicament, as well as the outright pain, they have suffered. The compensatory damages awarded hardly seem compensatory when you listen to what Schultz has to say—the spill didn’t just ruin a few years worth of catches, it completely devastated the fishing industry, possibly beyond the point of recovery. Even with the interest paid, Schultz said, the current ruling will still net huge losses on investments made in the industry by many Alaskans before the spill. And in an ironic twist of fate, even when some waters around the accident became fishable years ago, the loss of capital that resulted from the bankruptcy of many processing plants prevented that income from being generated. The oil spill just kept adding injury to more injury.
As heart-wrenching as Schultz’s testimony was, the Exxon case was really just a jumping off point for this hearing, which considered business practices ranging from un fair pay (and Ledbetter v. Goodyear) to pre-emption and arbitration. It’s nothing we haven’t heard before, but Harvard law professor Elizabeth Bartholet and former arbitrator gave a fresh viewpoint on the subject. Everyone on the bench , she testified, feels the institutional pressures that can help generate pro-business decisions: For example, if a judge wants a credit card, she had better rule in favor of the credit card company.
In the end, however, it was committee chairman and thespian Patrick Leahy (D-VT) who simplified the discussion. When the courts stop looking out for the American citizen, he said, it’s time to rethink some things. “The scales of justice appear to be tilting too quickly one way,” he said. “If anything, it may be a warning shot that some of the laws we've written are not being followed.”
This claim becomes even more outrageous when you consider the enormous financial toll the spill has taken on the fish industry and on tens of thousands of Alaskan citizens—it didn’t just destroy habitats and wildlife, it destroyed livelihoods as well.
It was a decision with a decidedly pro-business bent, and the hearing (entitled “Courting Big Business: The Supreme Court’s Recent Decisions on Corporate Misconduct and Laws Regulating Corporations”—say that three times fast) was a necessary step. It provided a forum for the voices of Alaskans to be heard, as Osa Schultz, a fisherman from Cordova, took the mic and spoke out against the decision. “As great as our losses are, and they are significant, equating punishment to a multi-billion dollar corporation with the losses of self employed fishermen such as my husband and me, is in no way punishment or deterrent, much less justice,” she said. Schultz added that “Exxon stands to pay pennies on the dollar” for their gross negligence.
Schultz gave a face to the 32,000 Alaskans that filed suit and articulated the economic predicament, as well as the outright pain, they have suffered. The compensatory damages awarded hardly seem compensatory when you listen to what Schultz has to say—the spill didn’t just ruin a few years worth of catches, it completely devastated the fishing industry, possibly beyond the point of recovery. Even with the interest paid, Schultz said, the current ruling will still net huge losses on investments made in the industry by many Alaskans before the spill. And in an ironic twist of fate, even when some waters around the accident became fishable years ago, the loss of capital that resulted from the bankruptcy of many processing plants prevented that income from being generated. The oil spill just kept adding injury to more injury.
As heart-wrenching as Schultz’s testimony was, the Exxon case was really just a jumping off point for this hearing, which considered business practices ranging from un fair pay (and Ledbetter v. Goodyear) to pre-emption and arbitration. It’s nothing we haven’t heard before, but Harvard law professor Elizabeth Bartholet and former arbitrator gave a fresh viewpoint on the subject. Everyone on the bench , she testified, feels the institutional pressures that can help generate pro-business decisions: For example, if a judge wants a credit card, she had better rule in favor of the credit card company.
In the end, however, it was committee chairman and thespian Patrick Leahy (D-VT) who simplified the discussion. When the courts stop looking out for the American citizen, he said, it’s time to rethink some things. “The scales of justice appear to be tilting too quickly one way,” he said. “If anything, it may be a warning shot that some of the laws we've written are not being followed.”
Daily Dose
- Waterboarding and the Justice Department [WP, NYT]
- More DoJ Politicization [WP]
- Gitmo Detainee Does Some Divulging [LA Times]
- Exxon Case's Punitive Damages Discussed in Senate [Anchorage Daily News]
- Third Circuit Nom Withdrawn [AP]
- Justice O'Connor Has Her Say, Even in Retirement [RoanokeTimes]
Thursday, July 24, 2008
Attorney General Keeps Reading From the Same Old Script
It’s hard to envy Attorney General Michael Mukasey right about now. He has a full plate these days, juggling the aftermath of the Supreme Court's habeas decision, rampant politicization of the Department of Justice, and potential voting rights issues in the upcoming election. But any ounce of pity for the overworked and highly-scrutinized official dried up quickly during this morning’s House Judiciary Committee hearing, “Oversight of the Department of Justice." Mukasey’s preference for misleading language over reality showed itself again today, as he displayed an astonishing ability to mince words over everything from executive privilege, to Boumediene v. Bush, to illegal immigration. Hey, if Mukasey wasn't going to provide any real information anyway, it’s not surprising Committee Chairman John Conyers (D-MI) didn’t bother administering an oath.
Oath or no oath, Attorney General Mukasey was true to form. He repeated the same tired administration lines about national security, from FISA to Boumediene, spouting the hollow conservative rhetoric that we’ve come to know and hate. He continued to evade the issue of the infamous torture memos, seeming almost to stick his fingers in his ears as he dodged questions from Rep. Jerrold Nadler (D-NY) about the DoJ’s legal authority in the matter. And despite the attorney general's proposal for post-Boumediene legislation that would aggrandize executive power while undermining the judiciary, he touted a “robust separation of powers” that has been clearly absent throughout the Bush administration.
So, in light of all this, it would seem as if yesterday morning’s hearing was unsalvageable. But thanks to a little persistent questioning from Rep. Conyers, some new territory was tread. With just over 100 days to go before the presidential election, Rep. Conyers expressed his doubts that the problems that plagued the elections in 2000 and 2004 have been alleviated, and he emphasized that the DoJ has done little to show any progress in that respect. Rep. Conyers observed that the little work that has been done has been ineffective. Not to worry. Attorney General Mukasey says he and the DoJ are “doing what we can.” How comforting: he’s taking a cue from Sheryl Crow . (If only the administration would adopt her views on the environment!)
The Attorney General also exhibited a disturbing willingness to erode the First Amendment, as he vehemently opposed a bill that would protect journalists’ confidential sources, a stance even conservative Rep. Mike Pence (R-IN) took issue with. But, once again, the attorney general went to his bottomless bag of rhetorical tricks, saying “Ten angels swearing on Bibles that that bill is harmless would not change the provisions that are in it.”
Although Mr. Mukasey's responses are slightly more palatable than his predecessor's incessant refrain ("I don't recall"), they provided little more useful information. It is clear that the Bush administration intends to continue its epic battle against Congressional oversight until the next president escorts them off the premises in January.
Oath or no oath, Attorney General Mukasey was true to form. He repeated the same tired administration lines about national security, from FISA to Boumediene, spouting the hollow conservative rhetoric that we’ve come to know and hate. He continued to evade the issue of the infamous torture memos, seeming almost to stick his fingers in his ears as he dodged questions from Rep. Jerrold Nadler (D-NY) about the DoJ’s legal authority in the matter. And despite the attorney general's proposal for post-Boumediene legislation that would aggrandize executive power while undermining the judiciary, he touted a “robust separation of powers” that has been clearly absent throughout the Bush administration.
So, in light of all this, it would seem as if yesterday morning’s hearing was unsalvageable. But thanks to a little persistent questioning from Rep. Conyers, some new territory was tread. With just over 100 days to go before the presidential election, Rep. Conyers expressed his doubts that the problems that plagued the elections in 2000 and 2004 have been alleviated, and he emphasized that the DoJ has done little to show any progress in that respect. Rep. Conyers observed that the little work that has been done has been ineffective. Not to worry. Attorney General Mukasey says he and the DoJ are “doing what we can.” How comforting: he’s taking a cue from Sheryl Crow . (If only the administration would adopt her views on the environment!)
The Attorney General also exhibited a disturbing willingness to erode the First Amendment, as he vehemently opposed a bill that would protect journalists’ confidential sources, a stance even conservative Rep. Mike Pence (R-IN) took issue with. But, once again, the attorney general went to his bottomless bag of rhetorical tricks, saying “Ten angels swearing on Bibles that that bill is harmless would not change the provisions that are in it.”
Although Mr. Mukasey's responses are slightly more palatable than his predecessor's incessant refrain ("I don't recall"), they provided little more useful information. It is clear that the Bush administration intends to continue its epic battle against Congressional oversight until the next president escorts them off the premises in January.
Wednesday, July 23, 2008
Tuesday, July 22, 2008
WSJ Backs Mukasey Boumediene “Fix”
The Wall Street Journal wrote an editorial today echoing Attorney General Michael Mukasey’s statements yesterday in which he called on Congress to pass new legislation that would “clarify” America’s detainee policy. Shocking, we know. Mr. Mukasey’s statements came less than five weeks after the Supreme Court released its Boumediene decision upholding the centuries old legal tenet of habeas corpus.
In his speech at the conservative American Enterprise Institute, Mr. Mukasey argued that we need “guidance from Congress” following the Boumediene decision to ensure, basically, that the terrorists don’t get out and run wild (we paraphrased a bit).
But his concerns seem to be little more than politically-motivated straw men. As we said in a statement yesterday, while Mr. Mukasey suggests that all habeas petitions by Guantanamo detainees should be heard in one district court, they already are. All current petitions pending in the D.C. District Court, and any filed elsewhere will be transferred to the D.C. District Court. He also suggests that, in order to avoid contradictory decisions, one judge should rule on the preliminary issues in the cases. Mr. Mukasey should be relieved, then, that Reagan appointee Judge Thomas F. Hogan has already taken on that role.
Mukasey’s statements yesterday were nothing more than one more attempt by the Bush administration to subvert the law by circumventing the role of our courts – Boumediene was the third time the Supreme Court rejected this administration’s detention policy. As we noted yesterday, despite administration efforts to conjure up a false sense of urgency, the last thing this country needs is to rush through new haphazard legislation. We’ve seen how well that works out (witness the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).
In his speech at the conservative American Enterprise Institute, Mr. Mukasey argued that we need “guidance from Congress” following the Boumediene decision to ensure, basically, that the terrorists don’t get out and run wild (we paraphrased a bit).
But his concerns seem to be little more than politically-motivated straw men. As we said in a statement yesterday, while Mr. Mukasey suggests that all habeas petitions by Guantanamo detainees should be heard in one district court, they already are. All current petitions pending in the D.C. District Court, and any filed elsewhere will be transferred to the D.C. District Court. He also suggests that, in order to avoid contradictory decisions, one judge should rule on the preliminary issues in the cases. Mr. Mukasey should be relieved, then, that Reagan appointee Judge Thomas F. Hogan has already taken on that role.
Mukasey’s statements yesterday were nothing more than one more attempt by the Bush administration to subvert the law by circumventing the role of our courts – Boumediene was the third time the Supreme Court rejected this administration’s detention policy. As we noted yesterday, despite administration efforts to conjure up a false sense of urgency, the last thing this country needs is to rush through new haphazard legislation. We’ve seen how well that works out (witness the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).
Daily Dose
- Gitmo Trial Begins, "Highly Coerced" Statements Blocked [WP, ABA Journal, NYT]
- Nebulous Gitmo Rules Still Abound [LA Times]
- Mukasey Disparages Courts, Encourages Gitmo Legislation [AP, ABA Journal]
- Spotlight Flashes on the Third Circuit [AP]
- Louisiana Asks Supreme Court to Reconsider Child Rape Death Penalty [NYT]
Monday, July 21, 2008
Third Circuit Says Ms. Jackson Isn't So Nasty
Today, a wardrobe malfunction in the Third Circuit had the internet abuzz—no, the robes of Judges Anthony Scirica, Marjorie Rendell and Julio Fuentes were not ripped off by Justin Timberlake. But the three Third Circuit judges did make up the panel that decided to overrule the $550,000 fine that was levied on CBS by the FCC after Janet Jackson’s breast made an appearance at the 2004 Super Bowl Halftime Show.
In CBS v. FCC, the court ruled that the FCC “acted arbitrarily and capriciously” in imposing the fine, with Judge Scirica writing the majority opinion. The court elaborated that the FCC’s fine was inconsistent: “The Commission’s determination that CBS’s broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy.” Who said court opinions were dull reading?
Judge Rendell dissented in part on the decision, questioning not the invalidity of the fine, but the degree of intentionality on the part of CBS in the incident. By concluding that images and spoken expletives deserved the same restrained enforcement policy, the court ensured that Jackson’s right breast would be etched into the annals of American law.
So, if nothing else, this case should be proof enough that watching the judiciary is an important—nay, essential—practice. Because if you take your eyes off the courts, even for nine-sixteenths of a second, you might miss something.
In CBS v. FCC, the court ruled that the FCC “acted arbitrarily and capriciously” in imposing the fine, with Judge Scirica writing the majority opinion. The court elaborated that the FCC’s fine was inconsistent: “The Commission’s determination that CBS’s broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency’s departure from its prior policy.” Who said court opinions were dull reading?
Judge Rendell dissented in part on the decision, questioning not the invalidity of the fine, but the degree of intentionality on the part of CBS in the incident. By concluding that images and spoken expletives deserved the same restrained enforcement policy, the court ensured that Jackson’s right breast would be etched into the annals of American law.
So, if nothing else, this case should be proof enough that watching the judiciary is an important—nay, essential—practice. Because if you take your eyes off the courts, even for nine-sixteenths of a second, you might miss something.
The Week Ahead
If last week’s litany of Gitmo hearings on the Hill had you screaming for variety, you’re in luck. Over the next few days, there will be hearings range from shady doings at the Justice Department’s to the abuse of executive power to big business. Call this week the Puu-Puu platter of Hill happenings—it’s got a little bit of everything.
First, however, is a little bit of the old stuff, as Attorney General Michael Mukasey talked detainee policy in a speech at the American Enterprise Institute this morning, trying to make a case for the need for new legislation in the wake of the Boumediene v. Bush decision. C-SPAN caught all the , ahem, action, so if watching the attorney general spout the same old administation rhetoric is up your alley, check cspan.org for the video. We, of course, parsed the attorney general's remarks in order to examine the reality, rather than the rhetoric.
Wednesday: Speaking of responses to SCOTUS decisions, the Senate Judiciary Committee, in a hearing entitled “Courting Big Business: The Supreme Court’s Recent Decisions on Corporate Misconduct and Laws Regulating Corporations,” will examine the pro-business bias of the Exxon v. Baker decision. The lengthily-titled hearing will include testimony from a native Alaskan about the oil spill’s irreparable effects.
Later that morning, Mr. Mukasey will once again be under scrutiny during the House Judiciary Committee’s hearing on “Oversight of the Department of Justice,” which will take a closer look at the blatant politicization of the DoJ that has plagued the Bush administration.
Friday: The Hill’s major committee happenings will wrap up in the morning with another House Judiciary Committee hearing, this one entitled “Executive Power and Its Constitutional Limitations.” Rep. Dennis Kucinich (D-OH) is rumored to be slated to speak, and according to blogger David Swanson, there are whispers of an appearance by Ralph Nader as well.
This may seem like a lot to have on your plate for just a few days’ time, but fear not—the dedicated men and women of Justice Watch will keep you updated throughout the week.
First, however, is a little bit of the old stuff, as Attorney General Michael Mukasey talked detainee policy in a speech at the American Enterprise Institute this morning, trying to make a case for the need for new legislation in the wake of the Boumediene v. Bush decision. C-SPAN caught all the , ahem, action, so if watching the attorney general spout the same old administation rhetoric is up your alley, check cspan.org for the video. We, of course, parsed the attorney general's remarks in order to examine the reality, rather than the rhetoric.
Wednesday: Speaking of responses to SCOTUS decisions, the Senate Judiciary Committee, in a hearing entitled “Courting Big Business: The Supreme Court’s Recent Decisions on Corporate Misconduct and Laws Regulating Corporations,” will examine the pro-business bias of the Exxon v. Baker decision. The lengthily-titled hearing will include testimony from a native Alaskan about the oil spill’s irreparable effects.
Later that morning, Mr. Mukasey will once again be under scrutiny during the House Judiciary Committee’s hearing on “Oversight of the Department of Justice,” which will take a closer look at the blatant politicization of the DoJ that has plagued the Bush administration.
Friday: The Hill’s major committee happenings will wrap up in the morning with another House Judiciary Committee hearing, this one entitled “Executive Power and Its Constitutional Limitations.” Rep. Dennis Kucinich (D-OH) is rumored to be slated to speak, and according to blogger David Swanson, there are whispers of an appearance by Ralph Nader as well.
This may seem like a lot to have on your plate for just a few days’ time, but fear not—the dedicated men and women of Justice Watch will keep you updated throughout the week.
Friday, July 18, 2008
Senate Republicans Hypocritical?
Well, it looks like Republicans on the Senate Judiciary Committee are up to their old tricks again. In an attempt to draw attention to the “unfair” treatment they claim President Bush’s pending judicial nominees have received, GOP committee members boycotted yesterday’s markup session. We can only assume that this is a last ditch effort to raise public outrage for their cause – particularly considering the meager exposure spurred by their press conference earlier this week.
Congressional Quarterly reported that the only Republican to attend yesterday’s meeting was Ranking Member Arlen Specter (R-PA) – who ironically enough only appeared so that he could explain why he and his colleagues would not be appearing. The senior senator from Pennsylvania informed Chairman Patrick Leahy (D-VT) that the other committee Republicans decided to skip the meeting because of the “absence of any judges on the calendar.” Because there’s certainly nothing else of importance that the committee could be working on?
Sen. Leahy was quick to point out to his colleague that more judges have been confirmed this Congress than in the 109th, when Republicans controlled the Senate. We would also add that, while Senate Republicans (see Minority Leader McConnell (R-KY)) would like to pretend that the Thurmond Rule (yes, we referenced Wikipedia) doesn’t exist, no circuit court nominees were confirmed after July in 1996, 2000 or 2004 – all years, by the way, when Republicans controlled the Senate. A selective memory sure is helpful when you’re trying to justify an otherwise unjustifiable argument!
Congressional Quarterly reported that the only Republican to attend yesterday’s meeting was Ranking Member Arlen Specter (R-PA) – who ironically enough only appeared so that he could explain why he and his colleagues would not be appearing. The senior senator from Pennsylvania informed Chairman Patrick Leahy (D-VT) that the other committee Republicans decided to skip the meeting because of the “absence of any judges on the calendar.” Because there’s certainly nothing else of importance that the committee could be working on?
Sen. Leahy was quick to point out to his colleague that more judges have been confirmed this Congress than in the 109th, when Republicans controlled the Senate. We would also add that, while Senate Republicans (see Minority Leader McConnell (R-KY)) would like to pretend that the Thurmond Rule (yes, we referenced Wikipedia) doesn’t exist, no circuit court nominees were confirmed after July in 1996, 2000 or 2004 – all years, by the way, when Republicans controlled the Senate. A selective memory sure is helpful when you’re trying to justify an otherwise unjustifiable argument!
Survey Says!
With the Supreme Court’s 2007-08 session done for, the good folks at Quinnipiac University have turned the tables on the American people, and have let them do the deciding. The issue at hand: How has the High Court fared this year? In a poll released yesterday, 1,783 voters from across the country evaluated the decisions the Court has made, the issues that are most pressing and what they want to see in the future. The verdict: Call it a 5-4 decision. Of the survey respondents, 43 percent disapprove, with 39 percent dissenting.
But things get even more interesting when the questions start to delve a little deeper. By a 42-33 percent margin, Americans are dissatisfied with the direction of the court, and a 31-25 margin tells us that America thinks the court is too conservative. The most telling statistic, however, might be the question regarding originalism vs. an evolving constitution. By a total of 52-40, Americans favor a constitutional interpretation that reflects changing times rather than original intent.
So what does all of this mean? The survey shows that the Court is losing favor with the American people: In May, 2007, 58 percent approved of the SCOTUS’ performance, and that number is down by almost 20 percent. So little by little, America is losing faith in one of its most venerated institutions. There may be a silver lining in that figure though -- perhaps Americans are truly beginning to pay attention to the troubling decisions the Court has produced since Chief Justice Roberts and Justice Alito took the bench. More encouraging is this number: 87 percent consider the president’s power to appoint justices to be a “very important” or “somewhat important” issue when making a decision at the polls. Hopefully, this is one statistic that will ring true in November.
But things get even more interesting when the questions start to delve a little deeper. By a 42-33 percent margin, Americans are dissatisfied with the direction of the court, and a 31-25 margin tells us that America thinks the court is too conservative. The most telling statistic, however, might be the question regarding originalism vs. an evolving constitution. By a total of 52-40, Americans favor a constitutional interpretation that reflects changing times rather than original intent.
So what does all of this mean? The survey shows that the Court is losing favor with the American people: In May, 2007, 58 percent approved of the SCOTUS’ performance, and that number is down by almost 20 percent. So little by little, America is losing faith in one of its most venerated institutions. There may be a silver lining in that figure though -- perhaps Americans are truly beginning to pay attention to the troubling decisions the Court has produced since Chief Justice Roberts and Justice Alito took the bench. More encouraging is this number: 87 percent consider the president’s power to appoint justices to be a “very important” or “somewhat important” issue when making a decision at the polls. Hopefully, this is one statistic that will ring true in November.
Thursday, July 17, 2008
Still Standing up for Fair Pay
Today, Lilly Ledbetter once again traveled across the country to tell her story and urge Congress to restore the civil rights protections the Supreme Court eviscerated last year. Although the Fair Pay Act was filibustered in the Senate, she continues to fight for its passage, even though legislation will not affect her own case. Hopefully, the Senate will soon follow Lilly’s courageous lead and renew our country’s commitment that no person should be paid less because of his or her gender, race, age, or disability.
Female Democratic senators, along with a handful of House members, joined Lilly today to highlight the continuing fight for fair pay. Senator Hillary Rodham Clinton (D-NY) introduced Lilly at a rally overlooking the Capitol and spoke about the Supreme Court’s willingness to side with businesses over workers. Senators Barbara Mikulski (D-MD), Barbara Boxer (D-CA), Patty Murray (D-WA), Debbie Stabenow (D-MI), Maria Cantwell (D-WA), Claire McCaskill (D-MO), and Amy Klobuchar (D-MN) also attended, voicing frustration that laws against pay discrimination that were passed with huge bipartisan majorities have now been gutted by the court’s decision.
The House has already demonstrated its commitment to equal pay for equal work—passing the Fair Pay Act just months after the Supreme Court issued its decision in Ledbetter v. Goodyear Tire and Rubber Co. Over a year has passed since the decision, and every day people like Lilly are receiving discriminatory pay and living with that inequality, with no recourse. Chief Justice Roberts and Justice Alito were willing to turn a blind eye to injustice, ignoring both congressional intent and the real-world effects of their decision. Fortunately, in this case, the Senate can correct the havoc the Bush appointees have wreaked. But Lilly’s story provides yet another illustration of how President Bush’s ultra-conservative court-packing scheme has damaged the lives of Americans, and the legacy of his ideological lifetime appointments will long outlast his stay in the White House.
To read more about the effects of the Ledbetter decision, which has now been cited in 267 cases, click here.
Female Democratic senators, along with a handful of House members, joined Lilly today to highlight the continuing fight for fair pay. Senator Hillary Rodham Clinton (D-NY) introduced Lilly at a rally overlooking the Capitol and spoke about the Supreme Court’s willingness to side with businesses over workers. Senators Barbara Mikulski (D-MD), Barbara Boxer (D-CA), Patty Murray (D-WA), Debbie Stabenow (D-MI), Maria Cantwell (D-WA), Claire McCaskill (D-MO), and Amy Klobuchar (D-MN) also attended, voicing frustration that laws against pay discrimination that were passed with huge bipartisan majorities have now been gutted by the court’s decision.
The House has already demonstrated its commitment to equal pay for equal work—passing the Fair Pay Act just months after the Supreme Court issued its decision in Ledbetter v. Goodyear Tire and Rubber Co. Over a year has passed since the decision, and every day people like Lilly are receiving discriminatory pay and living with that inequality, with no recourse. Chief Justice Roberts and Justice Alito were willing to turn a blind eye to injustice, ignoring both congressional intent and the real-world effects of their decision. Fortunately, in this case, the Senate can correct the havoc the Bush appointees have wreaked. But Lilly’s story provides yet another illustration of how President Bush’s ultra-conservative court-packing scheme has damaged the lives of Americans, and the legacy of his ideological lifetime appointments will long outlast his stay in the White House.
To read more about the effects of the Ledbetter decision, which has now been cited in 267 cases, click here.
Wednesday, July 16, 2008
Tuesday, July 15, 2008
Conservative Senators Purport New Fairness Doctrine
With the clock running down on President Bush’s final term, Senate Republicans are finding themselves with precious little time to push through his remaining judicial nominees. In a last ditch effort to rouse the public to their side, several GOP Senators, along with some choice conservative academics, held a press conference yesterday to accuse their Democratic colleagues of treating the president’s pending nominees unfairly. Lucky for Senate Democrats, the facts are on their side.
At the press conference, much was made, particularly by Senate Minority Leader Mitch McConnell (R-KY) and Senate Judiciary Committee Ranking Member Arlen Specter (R-PA), of end of term confirmation averages -- 15 circuit court judges were confirmed in the last year of President Clinton’s final term, while only 10 Bush judges have made it through the Senate. But that is like arguing that because your sibling received six birthday presents last year, you automatically deserve seven. Hey, it’s only fair!
What the esteemed senators from Pennsylvania and Kentucky (and for that matter North Carolina) forgot to mention was that no matter how many judges were confirmed during the last year of President Clinton’s final term, vacancy rates on the federal judiciary are currently at historic lows. When President Clinton left office, there were 26 circuit court vacancies. Currently, there are only nine. Besides, President Bush has received some pretty big gifts this past term -- Chief Justice John Roberts and Associate Justice Samuel Alito anyone?
Speakers at yesterday’s event made several other general statements about fairness, ranging from the need to move on consensus nominees to the attention that must be paid to a nominee’s qualifications. But all of these arguments add up to mere distractions from, and in some cases distortions of, the truth. It is easy for a Republican president to receive “consensus” support from a nominee’s home-state senators when both of those senators happen to also be Republican (think North Carolina nominee Robert Conrad). And the president’s nominees are not chosen for their qualifications as much as their ultra-conservative ideology (for proof, see GOP outrage at the nomination of Judge Helene White).
Yesterday’s press conference was nothing more than the usual empty conservative rhetoric on judges. Maybe instead of focusing on the “fair” treatment of President Bush’s nominees, Senators McConnell, Specter and Dole (R-NC) should be concerned about how fairly these nominees will treat the American people, who rely on the courts as the final arbiter and avenue of last resort.
At the press conference, much was made, particularly by Senate Minority Leader Mitch McConnell (R-KY) and Senate Judiciary Committee Ranking Member Arlen Specter (R-PA), of end of term confirmation averages -- 15 circuit court judges were confirmed in the last year of President Clinton’s final term, while only 10 Bush judges have made it through the Senate. But that is like arguing that because your sibling received six birthday presents last year, you automatically deserve seven. Hey, it’s only fair!
What the esteemed senators from Pennsylvania and Kentucky (and for that matter North Carolina) forgot to mention was that no matter how many judges were confirmed during the last year of President Clinton’s final term, vacancy rates on the federal judiciary are currently at historic lows. When President Clinton left office, there were 26 circuit court vacancies. Currently, there are only nine. Besides, President Bush has received some pretty big gifts this past term -- Chief Justice John Roberts and Associate Justice Samuel Alito anyone?
Speakers at yesterday’s event made several other general statements about fairness, ranging from the need to move on consensus nominees to the attention that must be paid to a nominee’s qualifications. But all of these arguments add up to mere distractions from, and in some cases distortions of, the truth. It is easy for a Republican president to receive “consensus” support from a nominee’s home-state senators when both of those senators happen to also be Republican (think North Carolina nominee Robert Conrad). And the president’s nominees are not chosen for their qualifications as much as their ultra-conservative ideology (for proof, see GOP outrage at the nomination of Judge Helene White).
Yesterday’s press conference was nothing more than the usual empty conservative rhetoric on judges. Maybe instead of focusing on the “fair” treatment of President Bush’s nominees, Senators McConnell, Specter and Dole (R-NC) should be concerned about how fairly these nominees will treat the American people, who rely on the courts as the final arbiter and avenue of last resort.
Fourth Circuit Gives Bush Win on Detainees
In a 5-4 decision today, the Fourth Circuit Court of Appeals accepted yet another of the Bush administration’s broad assertions of executive power in the War on Terror, ruling that the president has authority to hold legal U.S. residents in indefinite military detention as “enemy combatants,” whether or not they have ever been anywhere near a battlefield. At the same time, the court ordered the government to give Ali al-Marri, who was arrested in Peoria, Illinois, while working on his master’s degree, an evidentiary hearing where he can challenge the evidence against him.
Mr. al-Marri was originally charged with credit card fraud, but the government dropped those charges in 2003, designating him an “enemy combatant” and transferring him to a U.S. Navy brig of the coast of South Carolina, where he has been held for five years without charge. In a split decision, the en banc court today overruled a three-judge panel, finding that if the Bush administration’s allegations against Mr. al-Marri are true, he can be held indefinitely by the military. However, Judge Traxler, the crucial fifth vote, switched to side with the other four judges on the second issue in the case: whether Mr. al-Marri has been given sufficient “due process” rights to challenge his detention. Accordingly, the court sent the Mr. al-Marri back to the district court for a hearing—giving him an opportunity to rebut the allegations against him.
Four judges disagreed with the Bush administration’s assertions, finding that “Congress has not empowered the President to subject civilians within the United States to indefinite military detention.” In an impassioned opinion, invoking the reasoning of the Supreme Court in its recent Boumediene decision, they cautioned:
Mr. al-Marri was originally charged with credit card fraud, but the government dropped those charges in 2003, designating him an “enemy combatant” and transferring him to a U.S. Navy brig of the coast of South Carolina, where he has been held for five years without charge. In a split decision, the en banc court today overruled a three-judge panel, finding that if the Bush administration’s allegations against Mr. al-Marri are true, he can be held indefinitely by the military. However, Judge Traxler, the crucial fifth vote, switched to side with the other four judges on the second issue in the case: whether Mr. al-Marri has been given sufficient “due process” rights to challenge his detention. Accordingly, the court sent the Mr. al-Marri back to the district court for a hearing—giving him an opportunity to rebut the allegations against him.
Four judges disagreed with the Bush administration’s assertions, finding that “Congress has not empowered the President to subject civilians within the United States to indefinite military detention.” In an impassioned opinion, invoking the reasoning of the Supreme Court in its recent Boumediene decision, they cautioned:
Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power. Even in times of national peril, we must follow the law, lest this country cease to be a nation of laws.The Fourth Circuit’s embrace of the Bush administration’s sweeping authority serves as a poignant reminder of the president’s longest legacy. While the White House will get new tenants in just a few months, the federal bench has been stacked with lifetime appointees who will faithfully carry on President Bush’s ideology long after he has left office.
Daily Dose
- Rove Goes AWOL [AP]
- Colorado Senator Pulls Trump Card [Denver Post]
- Gitmo Gone Wild [AP, LA Times]
Monday, July 14, 2008
The Week Ahead
Think that the fall out from the Boumediene decision is going on recess with the Supreme Court? Think again.
While the Senate Republican Conference held a press conference on judicial nominees as we were writing, this week’s real action on the Hill is taking place in the form of several hearings regarding the buildup to, and impact of, the Court’s decision in Boumediene v. Bush. Three House committees and one Senate committee will examine the Bush administration’s policies surrounding Gitmo, the interrogation techniques used there and the steps we will see taken post-Boumediene.
The action starts tomorrow morning when the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties holds the fourth hearing of the ongoing series, “From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules.” The focus will likely stay on the legal memos that authorized torture in Gitmo without constitutional justification, as well as the origins of the “aggressive interrogation techniques” utilized there. The fifth installment will take place on Thursday morning.
Tomorrow afternoon, the U.S. Helsinki Commission will convene to discuss the future of the inmates at Guantanamo at a hearing entitled “Guantanamo Detainees after Boumediene: Now What?” Members of the House and Senate will go over the aftermath of the Supreme Court decision, as well as examine European detainee policies as a means for comparison.
The Senate Judiciary Committee will hold a hearing on Wednesday morning to further examine the destructive nature of the Bush administration’s terror policies. It might be a mouthful, but “How the Administration's Failed Detainee Policies Have Hurt the Fight Against Terrorism: Putting the Fight Against Terrorism on Sound Legal Foundations” will shed some more light on the many abuses perpetrated by this administration in its “War on Terror.”
And, as always, if you can’t bring yourself to sit through a session on C-SPAN, we at Justice Watch will deliver some coverage and commentary of our own—so be sure to stay tuned.
While the Senate Republican Conference held a press conference on judicial nominees as we were writing, this week’s real action on the Hill is taking place in the form of several hearings regarding the buildup to, and impact of, the Court’s decision in Boumediene v. Bush. Three House committees and one Senate committee will examine the Bush administration’s policies surrounding Gitmo, the interrogation techniques used there and the steps we will see taken post-Boumediene.
The action starts tomorrow morning when the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties holds the fourth hearing of the ongoing series, “From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules.” The focus will likely stay on the legal memos that authorized torture in Gitmo without constitutional justification, as well as the origins of the “aggressive interrogation techniques” utilized there. The fifth installment will take place on Thursday morning.
Tomorrow afternoon, the U.S. Helsinki Commission will convene to discuss the future of the inmates at Guantanamo at a hearing entitled “Guantanamo Detainees after Boumediene: Now What?” Members of the House and Senate will go over the aftermath of the Supreme Court decision, as well as examine European detainee policies as a means for comparison.
The Senate Judiciary Committee will hold a hearing on Wednesday morning to further examine the destructive nature of the Bush administration’s terror policies. It might be a mouthful, but “How the Administration's Failed Detainee Policies Have Hurt the Fight Against Terrorism: Putting the Fight Against Terrorism on Sound Legal Foundations” will shed some more light on the many abuses perpetrated by this administration in its “War on Terror.”
And, as always, if you can’t bring yourself to sit through a session on C-SPAN, we at Justice Watch will deliver some coverage and commentary of our own—so be sure to stay tuned.
Thirty Years of Supreme Reporting
After 30 years of covering the Supreme Court for the New York Times, Linda Greenhouse is retiring to academia, otherwise known as Yale Law School. In her final article for the newspaper titan, Ms. Greenhouse reflected on her last three decades and the changes she has seen in our nation’s highest court.
From the battles over abortion and affirmative action of the 1970s to the battles over abortion and affirmative action of our current decade, Linda Greenhouse has had a front row seat for it all. And of course, you don’t spend 30 years covering a beat without getting a little insight into the inner workings of what has traditionally been a relatively secretive institution.
In yesterday’s article, Ms. Greenhouse wrote about her experiences on the front line of the Robert Bork confirmation battle – coincidentally a professor of her's during her time at Yale. She also discussed the shrewd management style of former Chief Justice William Rehnquist. She even included an amusing, if somewhat off-color (well, by Supreme Court standards, anyway) pregnancy anecdote regarding an exchange between herself and former Associate Justice Sandra Day O’Connor which included the phrase, “keep your legs crossed.” (As Justice O’Connor had hoped, Ms. Greenhouse did end up going into labor on the first Monday of the Court’s 1985 session.)
In the final paragraph of her final article, Ms. Greenhouse closed with a rather astute observation regarding the Court’s legacy of leadership and controversy. “The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”
From the battles over abortion and affirmative action of the 1970s to the battles over abortion and affirmative action of our current decade, Linda Greenhouse has had a front row seat for it all. And of course, you don’t spend 30 years covering a beat without getting a little insight into the inner workings of what has traditionally been a relatively secretive institution.
In yesterday’s article, Ms. Greenhouse wrote about her experiences on the front line of the Robert Bork confirmation battle – coincidentally a professor of her's during her time at Yale. She also discussed the shrewd management style of former Chief Justice William Rehnquist. She even included an amusing, if somewhat off-color (well, by Supreme Court standards, anyway) pregnancy anecdote regarding an exchange between herself and former Associate Justice Sandra Day O’Connor which included the phrase, “keep your legs crossed.” (As Justice O’Connor had hoped, Ms. Greenhouse did end up going into labor on the first Monday of the Court’s 1985 session.)
In the final paragraph of her final article, Ms. Greenhouse closed with a rather astute observation regarding the Court’s legacy of leadership and controversy. “The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”
Daily Dose
- A Blind Eye to Guantanamo? [WP]
- Supreme Court finds history is a matter of opinions [LA Times]
- 2,691 Decisions: 30 Years Covering the Supreme Court [NYT]
- No Rush to Retire on Supreme Court [AP]
- Editorial: High Court Let Exxon Off With a Rap on the Knuckles [Philadelphia Inquirer]
Friday, July 11, 2008
Facial Challenges Are Out: auf Wiedersehen!
In an article published in the July 2008 issue of the ABA Journal, LA Times Supreme Court Reporter David G. Savage argues that the Roberts Court is sending a message: “Facial Challenges are out. As-applied challenges are in.”
In other words, if a state passes a generally applicable law (like a voter-id law) that seems likely to harm a lot of people, the High Court won’t help you until the harm has come to pass. Unless you can demostrate that actual voters have already been disenfranchised, Chief Justice Roberts has no time for your "hypothetical" complaints--which means that you can't vindicate your fundamental right to vote until after you've missed the election. Even then, the court will only avenge the rights of those particular victims who challenge the law, leaving the offending law in place to harm more people in the future. Perhaps this is what Justice Roberts means when he claims he takes a minimalist approach to the law.
This approach creates the false impression that it is somehow wrong for judges to make logical assumptions about reality, but as Justice Felix Frankfurter observed, the Supreme Court “should not be ignorant as judges of what we know as men.” Dismissing facial challenges allows preventable harms to occur, limits possible remedies, and closes the courthouse door to entire classes of people.
It begs the question--if fundamental rights are at risk--why wait?
In other words, if a state passes a generally applicable law (like a voter-id law) that seems likely to harm a lot of people, the High Court won’t help you until the harm has come to pass. Unless you can demostrate that actual voters have already been disenfranchised, Chief Justice Roberts has no time for your "hypothetical" complaints--which means that you can't vindicate your fundamental right to vote until after you've missed the election. Even then, the court will only avenge the rights of those particular victims who challenge the law, leaving the offending law in place to harm more people in the future. Perhaps this is what Justice Roberts means when he claims he takes a minimalist approach to the law.
This approach creates the false impression that it is somehow wrong for judges to make logical assumptions about reality, but as Justice Felix Frankfurter observed, the Supreme Court “should not be ignorant as judges of what we know as men.” Dismissing facial challenges allows preventable harms to occur, limits possible remedies, and closes the courthouse door to entire classes of people.
It begs the question--if fundamental rights are at risk--why wait?
WSJ Editorial Attempts to Exonerate Exxon
By now, most poeple know of the 1989 Exxon-Valdez oil spill. You heard about the drunken oil tanker captain who handed the keys to an unqualified underling just before a hair-pin turn near Alaska. As a result, the ship crashed into a reef, spilling 11 million gallons of oil into pristine Prince William Sound.
Well part of the story that you may not have heard is that in 1994, Exxon Shipping Co. v. Baker awarded $5 billion in punitive damages to those affected by the spill, and it seemed a fair price for an obscenely wealthy corporation to give to the citizens whose livelihoods were ruined. But, that sum was later cut in half by the Ninth Circuit Court of Appeals. And in June, the Supreme Court reduced it even further to a mere $507 million. It was a huge blow to the victims of the spill that trivialized the company's catastrophic negligence.
The American Enterprise Institute’s Ted Frank, however, thinks otherwise. In an editorial in yesterday's Wall Street Journal, Frank asserts that the case represents a need for legislative reform to actually reduce punitive damages in the future. Ignore the fact that the $500 million Exxon now has to pay is just barely more than 1% of its earnings last year alone. Also the fact that the two decade delay further diminished the value of this already paltry payout, especially since many of the oil spill's victims have died waiting for compensation.
The fact of the matter is that the 1:1 ratio of punitive to compensatory damages that was awarded in this case was -- compared to similar rulings in the past -- modest at best. And when you consider the extreme negligence and the dire consequences of the spill, it seems egregiously low (as the jury who awarded the $5 billion can attest). Frank asserts however, that “[t]he main danger is that trial lawyers will use the Court's 1:1 ratio as a floor, rather than a ceiling.”
This statement completely discounts the actual principle behind punitive damages, which is to punish defendants and to act as a deterent for futer misconduct. How is an award going to deter such negligence if a company knows that a jury can only award punitive damages equal to compensatory damages? It won't.
And that’s something even a soused ship captain should be able to grasp.
Well part of the story that you may not have heard is that in 1994, Exxon Shipping Co. v. Baker awarded $5 billion in punitive damages to those affected by the spill, and it seemed a fair price for an obscenely wealthy corporation to give to the citizens whose livelihoods were ruined. But, that sum was later cut in half by the Ninth Circuit Court of Appeals. And in June, the Supreme Court reduced it even further to a mere $507 million. It was a huge blow to the victims of the spill that trivialized the company's catastrophic negligence.
The American Enterprise Institute’s Ted Frank, however, thinks otherwise. In an editorial in yesterday's Wall Street Journal, Frank asserts that the case represents a need for legislative reform to actually reduce punitive damages in the future. Ignore the fact that the $500 million Exxon now has to pay is just barely more than 1% of its earnings last year alone. Also the fact that the two decade delay further diminished the value of this already paltry payout, especially since many of the oil spill's victims have died waiting for compensation.
The fact of the matter is that the 1:1 ratio of punitive to compensatory damages that was awarded in this case was -- compared to similar rulings in the past -- modest at best. And when you consider the extreme negligence and the dire consequences of the spill, it seems egregiously low (as the jury who awarded the $5 billion can attest). Frank asserts however, that “[t]he main danger is that trial lawyers will use the Court's 1:1 ratio as a floor, rather than a ceiling.”
This statement completely discounts the actual principle behind punitive damages, which is to punish defendants and to act as a deterent for futer misconduct. How is an award going to deter such negligence if a company knows that a jury can only award punitive damages equal to compensatory damages? It won't.
And that’s something even a soused ship captain should be able to grasp.
Thursday, July 10, 2008
Von Spakovsky Strikes Again
Hans von Spakovsky, who made headlines when his controversial bid for a seat on the Federal Election Commission stalled in the Senate, has written a new article for National Review Online in which he claims a new and dangerous threat to our fragile democracy: “non-citizen” voting.
As a lawyer in the Justice Department’s Civil Rights division, von Spakovsky caused anger throughout the civil rights community when he shifted the division’s focus away from protecting the voting rights of minorities (see the Voting Rights Act) and turned it towards so-called “voter fraud.” Mr. von Spakovsky and his fellow Republicans seemed to think that there was a plague of in-person voter fraud threatening the legitimacy of our electoral system. Never mind that there was almost no evidence to support their position.
Mr. von Spakovsky’s solution? Voter identification laws! He was a vocal supporter of controversial voter ID laws throughout the country, particularly Indiana’s incarnation. While the Supreme Court upheld Indiana’s restrictive law, the logic behind th is statu t e remains in dispute. Requiring voters to present picture IDs at polling places means that thousands of poor, minority, elderly and disabled voters (all of whom are less likely to have drivers’ licenses) could be disenfranchised.
As a result of his leadership at the Justice Department and his controversial stance on voter identification laws, Mr. von Spakovsky’s nomination to the FEC was dead in the water. But don’t worry. He’s still fully committed to protecting the sanctity of our elections. Now, he is calling for states to require proof of citizenship when registering voters. Apparently showing your ID when casting your ballot isn’t enough. Mr. von Spakovsky seems to think that the threat of “non-citizen” voting is so great, it must be addressed at the root – voter registration.
All of these so-called efforts to protect the legitimacy of our elections are transparently political. Conservative state legislatures pass voter identification laws because those most likely to be affected (the poor, the elderly and minorities) also happen to vote largely Democratic. Now, in an election year with the highest voter registration numbers in recent memory, conservatives are concerned that the vast majority of these new voters happen to be registering Democratic. Well, not to worry. They’ll nip that right in the bud!
As a lawyer in the Justice Department’s Civil Rights division, von Spakovsky caused anger throughout the civil rights community when he shifted the division’s focus away from protecting the voting rights of minorities (see the Voting Rights Act) and turned it towards so-called “voter fraud.” Mr. von Spakovsky and his fellow Republicans seemed to think that there was a plague of in-person voter fraud threatening the legitimacy of our electoral system. Never mind that there was almost no evidence to support their position.
Mr. von Spakovsky’s solution? Voter identification laws! He was a vocal supporter of controversial voter ID laws throughout the country, particularly Indiana’s incarnation. While the Supreme Court upheld Indiana’s restrictive law, the logic behind th is statu t e remains in dispute. Requiring voters to present picture IDs at polling places means that thousands of poor, minority, elderly and disabled voters (all of whom are less likely to have drivers’ licenses) could be disenfranchised.
As a result of his leadership at the Justice Department and his controversial stance on voter identification laws, Mr. von Spakovsky’s nomination to the FEC was dead in the water. But don’t worry. He’s still fully committed to protecting the sanctity of our elections. Now, he is calling for states to require proof of citizenship when registering voters. Apparently showing your ID when casting your ballot isn’t enough. Mr. von Spakovsky seems to think that the threat of “non-citizen” voting is so great, it must be addressed at the root – voter registration.
All of these so-called efforts to protect the legitimacy of our elections are transparently political. Conservative state legislatures pass voter identification laws because those most likely to be affected (the poor, the elderly and minorities) also happen to vote largely Democratic. Now, in an election year with the highest voter registration numbers in recent memory, conservatives are concerned that the vast majority of these new voters happen to be registering Democratic. Well, not to worry. They’ll nip that right in the bud!
Wednesday, July 9, 2008
Mukasey “Answers” to Senate Judiciary Committee
Attorney General Michael Mukasey is likely receiving high marks from President Bush. Only eight months into his brief tenure helming the Department of Justice, Mukasey has thoroughly mastered the evasion and doublespeak that has become the modus operandi of so many Bush administration officials. Mukasey’s testimony before the Senate Judiciary Committee is strong evidence that the culture of subversion and occlusion is still vibrant within the highest ranks of the Bush administration.
The committee called Mukasey to testify about allegations of politicization at the Justice Department. Quick to note that he wasn’t in office when the alleged offenses occurred, Mukasey reiterated his promise to eliminate any political considerations from future policymaking. But several Senators recalled another promise Mukasey made during his confirmation hearings: that he would resign if President Bush refused to follow the law.
The alleged offenses, which include ignoring federal law on wiretapping, politicized hiring and firing to career (non-political) DOJ positions, selective prosecutions, selective tax enforcement, politicization of the Civil Rights Division, politicized hiring of Immigration Judges, and cowing to pressure from the White House, if true, are not merely illegal: they represent an expansion of executive power to near-authoritarian dimensions. And yet, for all his promises that the Department of Justice would once again become a department of justice, Mukasey was peculiarly reticent when pressed to investigate the role high-ranking administration officials played in authorizing (and perhaps encouraging) these practices.
Mukasey seems bent on providing the administration with an impenetrable shroud of plausible deniability to cover its gross abuses. He refused to order an investigation into the administration’s role in authorizing torture of detainees. He refused to acknowledge that we have an interest in knowing whether the Office of Professional Responsibility uncovers misconduct by Department attorneys -- he appears to be more concerned with the professional reputations of the offenders. He refused to hold Office of Legal Counsel attorneys accountable for crafting bad faith justifications for torture even if that advice is unsubstantiated and permeated by politics. He has even denied that the president is bound by his own executive orders. Over and over again, Mukasey refuses to take responsibility for cleaning up past messes and, as Senator Biden said, acts like he “float[s] above in the ether somewhere.”
For a man who is charged with representing the people of the United States, Attorney General Michael Mukasey displays an insufferably high degree of unquestioning loyalty to President Bush. He has a duty to order a full investigation into these allegations, regardless of where the buck stops. It is simply unacceptable for our nation’s highest prosecutor to respond to allegations of patently illegal activity by the president’s inner circle with a blank stare of apathy.
The committee called Mukasey to testify about allegations of politicization at the Justice Department. Quick to note that he wasn’t in office when the alleged offenses occurred, Mukasey reiterated his promise to eliminate any political considerations from future policymaking. But several Senators recalled another promise Mukasey made during his confirmation hearings: that he would resign if President Bush refused to follow the law.
The alleged offenses, which include ignoring federal law on wiretapping, politicized hiring and firing to career (non-political) DOJ positions, selective prosecutions, selective tax enforcement, politicization of the Civil Rights Division, politicized hiring of Immigration Judges, and cowing to pressure from the White House, if true, are not merely illegal: they represent an expansion of executive power to near-authoritarian dimensions. And yet, for all his promises that the Department of Justice would once again become a department of justice, Mukasey was peculiarly reticent when pressed to investigate the role high-ranking administration officials played in authorizing (and perhaps encouraging) these practices.
Mukasey seems bent on providing the administration with an impenetrable shroud of plausible deniability to cover its gross abuses. He refused to order an investigation into the administration’s role in authorizing torture of detainees. He refused to acknowledge that we have an interest in knowing whether the Office of Professional Responsibility uncovers misconduct by Department attorneys -- he appears to be more concerned with the professional reputations of the offenders. He refused to hold Office of Legal Counsel attorneys accountable for crafting bad faith justifications for torture even if that advice is unsubstantiated and permeated by politics. He has even denied that the president is bound by his own executive orders. Over and over again, Mukasey refuses to take responsibility for cleaning up past messes and, as Senator Biden said, acts like he “float[s] above in the ether somewhere.”
For a man who is charged with representing the people of the United States, Attorney General Michael Mukasey displays an insufferably high degree of unquestioning loyalty to President Bush. He has a duty to order a full investigation into these allegations, regardless of where the buck stops. It is simply unacceptable for our nation’s highest prosecutor to respond to allegations of patently illegal activity by the president’s inner circle with a blank stare of apathy.
Tuesday, July 8, 2008
Embattled District Court Nominee Faces Uncertainty
No stranger to controversy, Michael O’Neill -- President Bush’s most recent nominee for a seat on the District Court for the District of Columbia -- is finding himself at the center of new polemics lately. The former chief counsel to Sen. Arlen Specter (R-PA) helped to usher the nominations of Supreme Court Justices John Roberts and Samuel Alito through the Senate. Now, we’ll see if he can get his own off of the ground.
Following President Bush’s announcement that he intended to appoint Mr. O’Neill to a vacancy on the important District Court for the District of Columbia, criticisms of his hyper-partisan past swarmed the internet. It was widely reported that Sen. Specter was forced to hire Mr. O’Neill in an arrangement that quieted opponents to his chairmanship of the all important Senate Judiciary Committee. To many movement conservatives, Sen. Specter lacked the conservative bona fides to fill such a crucial post.
Probably the most disturbing allegation surrounding Mr. O’Neill, however, was that he -- at the behest of senior Justice Department officials (i.e. Alberto Gonzales?) -- included language in the legislation that extended the Patriot Act allowing the president to replace sitting U.S. Attorneys without Senate approval. According to several reports, Sen. Specter, who opposed such an unprecedented expansion of executive authority, had no idea that his aide had included the controversial language into the renewal bill.
And late last week, a new scandal emerged as The New York Times reported that the O'Neill, who now teaches at George Mason University’s law school, had gotten into some trouble for plagiarizing academic articles. One such piece, published in the Supreme Court Economic Review, was actually withdrawn after the paper determined that “substantial portions” had been “appropriated without attribution” to its original author. In fact, it appears that Mr. O’Neill’s propensity for borrowing phrases from other academics actually cost him tenure at GMU, where he remains just an associate professor.
Defiant to the end, Mr. O’Neill refuses to withdraw his name from consideration for the important post and shrugs off the plagiarism controversy. An article in today’s Washington Post quoted Mr. O’Neill as saying, “I have always used a big old file of articles I was working on…I cut and paste information…[and] I lost track of stuff.” Claiming that it was all just a simple mistake, he asked “if you believe this was inadvertent, and it was fairly insignificant, is it something to kill somebody's career for?” Looks like we’ll have to wait to find out.
Following President Bush’s announcement that he intended to appoint Mr. O’Neill to a vacancy on the important District Court for the District of Columbia, criticisms of his hyper-partisan past swarmed the internet. It was widely reported that Sen. Specter was forced to hire Mr. O’Neill in an arrangement that quieted opponents to his chairmanship of the all important Senate Judiciary Committee. To many movement conservatives, Sen. Specter lacked the conservative bona fides to fill such a crucial post.
Probably the most disturbing allegation surrounding Mr. O’Neill, however, was that he -- at the behest of senior Justice Department officials (i.e. Alberto Gonzales?) -- included language in the legislation that extended the Patriot Act allowing the president to replace sitting U.S. Attorneys without Senate approval. According to several reports, Sen. Specter, who opposed such an unprecedented expansion of executive authority, had no idea that his aide had included the controversial language into the renewal bill.
And late last week, a new scandal emerged as The New York Times reported that the O'Neill, who now teaches at George Mason University’s law school, had gotten into some trouble for plagiarizing academic articles. One such piece, published in the Supreme Court Economic Review, was actually withdrawn after the paper determined that “substantial portions” had been “appropriated without attribution” to its original author. In fact, it appears that Mr. O’Neill’s propensity for borrowing phrases from other academics actually cost him tenure at GMU, where he remains just an associate professor.
Defiant to the end, Mr. O’Neill refuses to withdraw his name from consideration for the important post and shrugs off the plagiarism controversy. An article in today’s Washington Post quoted Mr. O’Neill as saying, “I have always used a big old file of articles I was working on…I cut and paste information…[and] I lost track of stuff.” Claiming that it was all just a simple mistake, he asked “if you believe this was inadvertent, and it was fairly insignificant, is it something to kill somebody's career for?” Looks like we’ll have to wait to find out.
Monday, July 7, 2008
AFJ Releases SCOTUS End of Term Report
The Supreme Court has only been out of session for a week, but it certainly isn’t difficult to recognize some of the steps the Roberts Court has taken in its second full term -- or perhaps more accurately, the steps it has taken backward. Alliance for Justice’s End of Term Report lays out the causes, statistics, and so-called logic behind the Court’s right-wing bias in 2007-08.
For example, the past year saw a dramatic decrease in 5-4 decisions -- last term, about one-third of the Court’s decisions were 5-4, compared to about one-sixth this term. More than anything, this may have been due to an effort from the moderate justices to alleviate some of the damage done by ideological decisions by siding with the conservative majority in narrower rulings.
Whether considering the Court’s opinions in DC v. Heller or Crawford v. Marion County Election Board, this term solidified the conservative justices’ hold on the institution and provided a further glimpse into the true agenda of the Court’s right wing. Now more than ever, the replacement of a single justice could have devastating consequences for American law, unleashing the full force of a conservative bloc currently tempered by an astute and persuasive minority and an unpredictable fifth vote.
Such a term makes it difficult to look forward to next October.
For example, the past year saw a dramatic decrease in 5-4 decisions -- last term, about one-third of the Court’s decisions were 5-4, compared to about one-sixth this term. More than anything, this may have been due to an effort from the moderate justices to alleviate some of the damage done by ideological decisions by siding with the conservative majority in narrower rulings.
Whether considering the Court’s opinions in DC v. Heller or Crawford v. Marion County Election Board, this term solidified the conservative justices’ hold on the institution and provided a further glimpse into the true agenda of the Court’s right wing. Now more than ever, the replacement of a single justice could have devastating consequences for American law, unleashing the full force of a conservative bloc currently tempered by an astute and persuasive minority and an unpredictable fifth vote.
Such a term makes it difficult to look forward to next October.
Daily Dose
- Editorial: Guantanamo Crumbles [WP]
- Chicago Gun Ban May Test Ruling [WP]
- Justice Department in Hot Water [WP, LA Times]
- Editorial: What Did the Framers Have in Mind? [NYT]
- Editorial: False Victory at the Border [NYT]
- Op-Ed: Affirmative Distraction [NYT]
- Op-Ed: Supreme Court decision ignores precedent, common sense [SF Chronicle]
- Decider on the High Court [WP]
- Don’t Trust Me on Guantanamo, Read This [Bloomberg]
Thursday, July 3, 2008
Racial Profiling By Any Other Name
It appears that the Justice Department, under the stewardship of Attorney General Michael Mukasey, is finally graduating from its dependence on political considerations in driving its criminal investigations and will now focus its attention on a suspect’s race, religion, or ethnicity. The Associated Press is reporting that “[t]he Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.”
While we are happy to learn that the DOJ will no longer focus its efforts on digging up dirt on, let’s say, a popular Democratic governor in a strategic southern state, we’re not quite sure that they got our message. Generally speaking, its considered best to focus on, you know, evidence, rather than someone’s personal or political history. Maybe that’s just us…
According to the article, the “changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.” Sounds eerily similar to pulling over a black guy driving in a white neighborhood, although, we’re pretty sure that whole “racial profiling” thing is unconstitutional.
Of course, the Justice Department is careful to make sure that all of this race-chasing doesn’t go too far. FBI agents wouldn’t just consider a suspect’s ethnicity – they will also take into account things like, “travel to regions of the world known for terrorist activity.” So, all you Muslim-Americans who emigrated from the Middle East should be fine – unless you travel back to see your family.
Interestingly enough, Mr. Mukasey was brought into the Justice Department in order to clean up the mess that former Attorney General Alberto Gonzales had made. Many had hoped he would bring back a sense of respect for the rule of law. Of course, stories like this make us question what rules of law he’s considering. Heck, even former Bush AG John Ashcroft referred to racial profiling as an “unconstitutional deprivation of equal protection under our Constitution.” And President Bush himself denounced the practice, when one of his own Secret Service agents, who happened to be Arab-American, was not allowed to board an airplane.
But not to worry, FBI agents will “not be allowed to eavesdrop on phone calls or dig deeply into personal data — such as the content of phone or e-mail records or bank statements — until a full investigation [is] opened.” We feel much better.
While we are happy to learn that the DOJ will no longer focus its efforts on digging up dirt on, let’s say, a popular Democratic governor in a strategic southern state, we’re not quite sure that they got our message. Generally speaking, its considered best to focus on, you know, evidence, rather than someone’s personal or political history. Maybe that’s just us…
According to the article, the “changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.” Sounds eerily similar to pulling over a black guy driving in a white neighborhood, although, we’re pretty sure that whole “racial profiling” thing is unconstitutional.
Of course, the Justice Department is careful to make sure that all of this race-chasing doesn’t go too far. FBI agents wouldn’t just consider a suspect’s ethnicity – they will also take into account things like, “travel to regions of the world known for terrorist activity.” So, all you Muslim-Americans who emigrated from the Middle East should be fine – unless you travel back to see your family.
Interestingly enough, Mr. Mukasey was brought into the Justice Department in order to clean up the mess that former Attorney General Alberto Gonzales had made. Many had hoped he would bring back a sense of respect for the rule of law. Of course, stories like this make us question what rules of law he’s considering. Heck, even former Bush AG John Ashcroft referred to racial profiling as an “unconstitutional deprivation of equal protection under our Constitution.” And President Bush himself denounced the practice, when one of his own Secret Service agents, who happened to be Arab-American, was not allowed to board an airplane.
But not to worry, FBI agents will “not be allowed to eavesdrop on phone calls or dig deeply into personal data — such as the content of phone or e-mail records or bank statements — until a full investigation [is] opened.” We feel much better.
Daily Dose
- The Justice Department’s Blunder [NYT]
- Editorial: A Supreme Court on the Brink [NYT]
- Editorial: The founders’ rights stuff [LA Times]
- Editorial: Bush’s tainting of Justice lawyer pool unforgivable [Houston Chronicle]
- South Dakota’s Unbelievable New Abortion Law [Slate]
- Racial Profiling Eyed For Terror Probes [AP]
Wednesday, July 2, 2008
Agreement Struck on New 3rd Circuit Nom?
Rumors are flying that an agreement might be in the works between Pennsylvania Senators Robert Casey (D-PA) and Arlen Specter (R-PA) vis-à-vis pending judicial vacancies. The Legal Intelligencer is reporting that they have worked out a tentative agreement regarding one of two vacancies on the Third Circuit Court of Appeals and four district court vacancies in Pennsylvania’s Eastern District.
The White House has already nominated Eastern District Judge Gene Pratter to fill the Third Circuit vacancy, but her nomination stalled when Sen. Casey objected, citing her dismal record on employment and disability issues. As part of the alleged agreement, President Bush would withdraw Judge Pratter from consideration and replace her with Judge Paul Diamond, also from the Eastern District Court. In exchange for Judge Diamond’s nomination, the article reports that Sen. Casey would support four of President Bush’s and Sen. Specter’s Eastern District Court nominees.
The motivation behind Sen. Casey’s alleged discussions with Sen. Specter is not immediately clear, especially considering the timing. The Senate does not usually take up new nominees this late in an election year. In fact, the last circuit court judge confirmed in 2000 – the end of President Clinton’s term – had been nominated in February of that year. It is still unclear from the article whether any potential agreement would have the support of either the White House or Senate Democratic Leadership, including Majority Leader Harry Reid (D-NV) and Senate Judiciary Chair Patrick Leahy (D-VT).
We will be sure to keep our readers updated on any new developments.
The White House has already nominated Eastern District Judge Gene Pratter to fill the Third Circuit vacancy, but her nomination stalled when Sen. Casey objected, citing her dismal record on employment and disability issues. As part of the alleged agreement, President Bush would withdraw Judge Pratter from consideration and replace her with Judge Paul Diamond, also from the Eastern District Court. In exchange for Judge Diamond’s nomination, the article reports that Sen. Casey would support four of President Bush’s and Sen. Specter’s Eastern District Court nominees.
The motivation behind Sen. Casey’s alleged discussions with Sen. Specter is not immediately clear, especially considering the timing. The Senate does not usually take up new nominees this late in an election year. In fact, the last circuit court judge confirmed in 2000 – the end of President Clinton’s term – had been nominated in February of that year. It is still unclear from the article whether any potential agreement would have the support of either the White House or Senate Democratic Leadership, including Majority Leader Harry Reid (D-NV) and Senate Judiciary Chair Patrick Leahy (D-VT).
We will be sure to keep our readers updated on any new developments.
Daily Dose
- More Federal Judges? [Legal Intelligencer, National Law Journal]
- Justice Department Trouble Continues [WP, NYT]
- Editorial: Of Whales and National Security [NYT]
- Op-Ed: Shoot to Stun [NYT]
Tuesday, July 1, 2008
Rendition Approved, Justice Denied
In an opinion that boggles the mind, the Second Circuit Court of Appeals dismissed a lawsuit yesterday filed by Maher Arar, a Syrian-born Canadian who claimed that the American government illegally sent him to Syria in a case of “extraordinary rendition.” Mr. Arar, who was detained by immigration officials in 2002 during a layover in Kennedy International Airport, was initially sent to Jordan before being released to Syrian authorities. He was held prisoner for almost a year, during which time he says he was beaten with metal cables during interrogations.
In a 2-1 decision, the Second Circuit panel agreed with the lower court’s determination that the case involved serious national security issues and foreign policy concerns, but ultimately relied on procedural issues in its dismissal. While the majority feigned concern over the government’s excesses, writing that “threats to the nation’s security do not allow us to jettison principles of ‘simple justice and fair dealing,’” it held that Mr. Arar lacked standing, or the right to sue in federal court, because he had never technically entered the United States.
This argument completely discounts the government’s justification for detaining Mr. Arar in the first place -- that entering Kennedy International Airport for his layover required that he enter U.S. territory. During a congressional hearing last month, Richard Skinner, Inspector General for Homeland Security, argued that immigration officials acted properly in refusing Mr. Arar entry, which he contended was technically required for his layover, because his name was included on a terrorist watch-list -- Canada later acknowledged it mistakenly added Mr. Arar’s name to said list.
In his dissent, Judge Robert Sack called the majority’s assertion that Mr. Arar had never entered the United States “legal fiction,” and claimed that “Arar was, in effect, abducted while attempting to transit at J.F.K. Airport.” Maria LaHood, an attorney with the Center for Constitutional Rights said that yesterday’s decision made her sick and that “the ruling condones what U.S. officials did…and makes it possible to do it again.”
Following the court’s dismissal of Mr. Arar’s suit, the Justice Department released a statement in which it hailed the decision as a victory. In the statement, department officials claimed that “Mr. Arar was lawfully deported -- not rendered -- to Syria” and that “[t]he U.S. government received assurances from Syria that he would not be tortured.”
This argument rings so hollow, however, that it’s almost insulting. While Mr. Arar was born in Syria, he had Canadian citizenship at the time of his detention. If the government was only trying to deport him, they would have likely returned him to his country of residence, which was Canada -- coincidentally where his flight was headed -- most certainly not Syria. What’s more, the American government did not initially deport Mr. Arar to Syria, but rather sent him to Jordan, where he was eventually released by Jordanian authorities to the Syrian government.
Yesterday’s decision by the Second Circuit was a disturbing miscarriage of justice. The court’s majority completely disregarded the government’s stated justification for detaining Mr. Arar in order to prevent him from ever having his day in an American court. The unfortunate circumstances surrounding Mr. Arar’s “deportation” to Syria clearly suggest that this was an instance of “extraordinary rendition.” Even Inspector General Skinner acknowledged as much when he stated that he “could not rule out” that Mr. Arar was sent to Syria with the intention of having him questioned under torture about possible connections to terrorists. What good is our federal judiciary if it does not serve to check the abuses of our government in extreme cases like these?
In a 2-1 decision, the Second Circuit panel agreed with the lower court’s determination that the case involved serious national security issues and foreign policy concerns, but ultimately relied on procedural issues in its dismissal. While the majority feigned concern over the government’s excesses, writing that “threats to the nation’s security do not allow us to jettison principles of ‘simple justice and fair dealing,’” it held that Mr. Arar lacked standing, or the right to sue in federal court, because he had never technically entered the United States.
This argument completely discounts the government’s justification for detaining Mr. Arar in the first place -- that entering Kennedy International Airport for his layover required that he enter U.S. territory. During a congressional hearing last month, Richard Skinner, Inspector General for Homeland Security, argued that immigration officials acted properly in refusing Mr. Arar entry, which he contended was technically required for his layover, because his name was included on a terrorist watch-list -- Canada later acknowledged it mistakenly added Mr. Arar’s name to said list.
In his dissent, Judge Robert Sack called the majority’s assertion that Mr. Arar had never entered the United States “legal fiction,” and claimed that “Arar was, in effect, abducted while attempting to transit at J.F.K. Airport.” Maria LaHood, an attorney with the Center for Constitutional Rights said that yesterday’s decision made her sick and that “the ruling condones what U.S. officials did…and makes it possible to do it again.”
Following the court’s dismissal of Mr. Arar’s suit, the Justice Department released a statement in which it hailed the decision as a victory. In the statement, department officials claimed that “Mr. Arar was lawfully deported -- not rendered -- to Syria” and that “[t]he U.S. government received assurances from Syria that he would not be tortured.”
This argument rings so hollow, however, that it’s almost insulting. While Mr. Arar was born in Syria, he had Canadian citizenship at the time of his detention. If the government was only trying to deport him, they would have likely returned him to his country of residence, which was Canada -- coincidentally where his flight was headed -- most certainly not Syria. What’s more, the American government did not initially deport Mr. Arar to Syria, but rather sent him to Jordan, where he was eventually released by Jordanian authorities to the Syrian government.
Yesterday’s decision by the Second Circuit was a disturbing miscarriage of justice. The court’s majority completely disregarded the government’s stated justification for detaining Mr. Arar in order to prevent him from ever having his day in an American court. The unfortunate circumstances surrounding Mr. Arar’s “deportation” to Syria clearly suggest that this was an instance of “extraordinary rendition.” Even Inspector General Skinner acknowledged as much when he stated that he “could not rule out” that Mr. Arar was sent to Syria with the intention of having him questioned under torture about possible connections to terrorists. What good is our federal judiciary if it does not serve to check the abuses of our government in extreme cases like these?
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