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Elena Kagan – The Executive’s Dream

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The smartest points on the Elena Kagan Supreme Court nomination, were, as usual, made by Glenn Greenwald, who noted that not only does Ms. Kagan have no documented views on any important subjects, she has often expressed herself stolidly in favor of a greatly expanded executive branch. Ms. Kagan believes that habeas corpus and the right to a speedy civilian trial should be revoked to people accused of Terrorism, as well as their right not to be interrogated by torture, their right to see the evidence against them, and their right to see a lawyer. She has expressed this, at least, in various letters which can be found with a Google search.

It’s difficult to express my sadness at this nomination. We had prayed that Dianne Wood  – a far stronger candidate with a proven, documented record against unlimited executive power – would end up the nominee.  Some of our most cherished privileges, such as the right not to be interrogated by torture, hang by the thread of a single Supreme Court justice. Hamdan v. Rumsfeld, Boumediene v. Bush, Rasul v. Bush and several other crucial cases were decided by a narrow 5-4 majority. The above cases ruled nearly every aspect of the Bush-Obama secret detention program unconstitutional, and though they were largely ignored, their value is inestimable.

The New York Times, our bellwether to establishment opinion, let loose a glaring (Freudian?) slip in its treatment of the Kagan nomination. Halfway through the article, they say:

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Which is baffling for a variety of reasons. First, the “ambitious agenda [to expand] the reach of government” would likely include, in NYT parlance, the health care reform bill, the financial regulation bill, the repeal of Don’t Ask Don’t Tell, or other such Obama initiatives. The “ambitious agenda” surely does not include an unlimited expansion of executive power to torture, detain, and assassinate anyone around the globe, something with which Ms. Kagan (a so-called “liberal”) wholeheartedly agrees. To the contrary, Mr. Obama has real reason to fear a liberal Supreme Court, which would continue to strike down his unconstitutional uses of executive power – hence his selection of a cheerleader for indefinite detention and torture. Were Ms. Kagan, like her predecessor Justice Stevens, to have spoken out vociferously against our present detention practices, I have no doubt Mr. Obama would have passed her over for the nomination, as he did to Dianne Wood.

The confirmation hearings are sure to unfold as usual – that is, with as little substantive information as possible. When Ms. Kagan is asked about her views on previous decisions, she will of course say: “I will not interfere with precedent.” When she is asked about any future decisions she might make, she will naturally say “I cannot comment until the case comes before me.” So we end up learning nothing about her judicial views, except for the few stray comments that suggest she supports a “robust” interpretation of executive power. Change we can believe in!

Written by pavanvan

May 11, 2010 at 9:11 pm

Justice Stevens

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Still traveling, but I want to briefly touch upon Justice John Paul Steven’s recent retirement from the Supreme Court, which is an extremely crucial event in US jurisprudence and will likely have far-reaching ramifications on issues as diverse as campaign finance, torture, kidnapping, indefinite detention, abortion, and nearly every other issue on which the Supreme Court has given a narrow decision in the last fifty years.

Unlike the Sotomayor-for-Souter swap that occurred last year, Stevens retirement presents the first real opportunity for President Obama to re-make the Supreme Court. Stevens, who will turn 90 this year, has led the so-called “left wing” of the Supreme Court for nearly forty years. The New Yorker ran an excellent piece a couple weeks ago detailing Stevens’s long and storied career which I highly recommend reading to get an idea of what a significant force he has exerted on American jurisprudence. The last justice who still remembers World War II, Stevens has been a consistent champion for individual rights, limiting Executive Branch power, and upholding anti-trust legislation. The past decade saw numerous challenges to President Bush’s theories of unlimited executive power come before the Supreme Court, and many of the most dangerous powers assumed by Presidents Bush and Obama (suspension of habeas corpus, interrogation by torture, warrantless wiretappaing, etc) were struck down in narrow 5-4 majorities.

It is difficult to overstate Stevens’s role in providing at least a nominal limit to the President’s power. He not only voted with the majority in those decisions, he was the majority’s intellectual leader. Were Stevens not on the bench when the Supreme Court was deciding, say, Hamdan v. Rumsfeld, we would not have even a theoretical limit to what the President can and cannot do.

All this makes President Obama’s selection for Stevens’s replacement crucial. The establishment press is now reporting that Elena Kagan has emerged as the “frontrunner” for Stevens’s seat. Glenn Greenwald has a good rundown of her major characteristics, and she appears a “centrist” candidate, equally likely to please “both sides” of the aisle, and is sure to undergo a swift and painless confirmation.

To appease the “left”, Ms. Kagan takes solidly pro-abortion and pro-gay positions. To satisfy the national security fanatics, Ms. Kagan supports an expansive view of executive power, including the power to detain “terror suspects” indefinitely. According to the LA Times (via the Washington Independent), Ms. Kagan has explicitly stated that the President can hold ‘enemy combatants’ without trial:

Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

This is not a fair trade. It is important to realize that Ms. Kagan’s colorful opinions on Executive power fly directly in the face of the most significant Supreme Court decisions of the past decade: Hamdan v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush, all of which upheld the rights of ‘enemy combatants’ to be treated in accordance with the Geneva Convention (i.e. not tortured), be tried in a regularly constituted court, and challenge their detention in accordance with the Sixth Amendment. Given Ms. Kagan’s stated opinions, one can only conclude that her nomination to the Supreme Court would signify a palpable shift to the “right” for the judicial branch – that is, a shift away from the idea of “separation of powers” and toward a theory of an all-powerful executive.

Congress has long since lost almost all of its independence to massive corporations and executive bullying (remember the Iraq war?), but the Judiciary has still retained at least a modicum of  separation from the executive-legislative conglomerate. Ms. Kagan’s views regarding executive power during “war time” (and let’s not forget that this ‘war on terror’ is supposed to last 50 years) throw our independent judiciary into considerable danger. She should not be confirmed.

John Yoo and the Self-Satisfied Defense

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John Yoo, the primary author of the legal memoranda that gave President Bush the power to detain and torture anyone he likes, has written a slimy op-ed in the Wall Street Journal defending his ethical lapses. I know that Mr. Yoo is a big-shot Berkeley Law professor (and I’m just a 22-year-old nothing), so for fear of sounding ignorant I suppose I won’t give his article too much time. But it does beg for comment.

He begins, detailing the marvelous gift he bestowed upon President Obama:

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn’t make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush’s counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected “as false the choice between our safety and our ideals” and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

This is confusing for so many reasons. As I’m sure Mr. Yoo knows, President Obama has endorsed kidnapping “terrorism suspects” and holding them indefinitely at various sites around the globe. He’s opposed to any further investigation into our torture policy (something for which I imagine Mr. You would be quite grateful), and has, in fact, expanded the legal black hole at Bagram Air Base in Afghanistan, where no defense attorneys, judges or prosecutors can set foot.

Mr. Yoo mentions that President Obama has ordered Guantanamo closed (actually, Obama hasn’t closed it yet, and probably never will), but no other evidence to suggest President Obama has endorsed a meaningful review of executive power. I just don’t understand how one promise that anyway went unfulfilled  means Obama is “[determined] to take us back to a Sept. 10, 2001, approach to terrorism”, as Yoo later writes.

Then Mr. Yoo complains of being “hounded” in the form of a superficial Office of Professional Responsibility (OPR) review. I admit I have not read the report, but Mr. Yoo claims:

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Which says more, perhaps, about the Office of Professional responsibility than it does about the tactics which Mr. Yoo authorized, which include being forced to stand for weeks while shackled to the ceiling. And, of course, Mr. Yoo doesn’t deign to mention that the very “enhanced interrogation techniques” that he advised Presidents Bush and Obama to use, and defends in this article, are unconstitutional according to the Supreme Court.

Mr. Yoo lauds himself for sitting through the tedious hearings, even though he was under “no legal obligation to do so” and even though they had no impact on his lucrative professional career. Why should he make such a non-sacrifice?

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president—President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda.

Forgive me, but if one of the wars is specifically against al Qaeda, whom are we fighting in Iraq and Afghanistan? Are those merely “wars” in the general sense of the term, with no clear enemy or end? If they are, Mr. Yoo’s lengthy and repeated defenses of executive rule-by-decree during “wartime” means he advocates for a vast and permanent expansion of the President’s power. I don’t get it. Is that what he’s trying to say?

He ends his “op-ed piece”, which was really a self-serving polemic, with a bizzare example from five years ago:

n 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts.

The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow. In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission.

So, according to John Yoo, those few American deaths justify the indefinite detention of any and all goathearders (and anyone else we might happen not to trust). Do not bother asking Mr. Yoo why it is we’re in Afghanistan in the first place, who it is we’re fighting, or what our ultimate goals are. That’s not his department.

Written by pavanvan

March 21, 2010 at 11:03 pm

US Holding 27,000 Secret Prisoners Around the World

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Many people think that since Guantanamo only holds around 700 prisoners, and since that’s the only US secret prison that happens to be in the news, our crimes when it comes to torture and indefinite detention only extend to a few hundred prisoners. But Clive Stafford Smith, a valiant defense lawyer for many of the innocent US ‘ghost prisoners’, claims that the US is holding more than 27,000 secret prisoners in undisclosed hell-holes around the world.

Remember, 95% of detainees in US custody were seized randomly and brought to us to us by bounty hunters – sold, essentially, for a few thousand dollars –  and ex-Bush officials are already on record saying that most of them are innocent. Everyone who has the rotten luck to end up in US custody gets tortured in some manner or another, be it by sensory deprivation, sleep deprivation, “stress positions” (being forced to stand, arms outstretched for days at a time), or whatever else the soldiers decide to do with you. There are no exceptions.

And lest we forget, at least 100 of these detainees, and likely far more, were horrifically tortured to death. The most terrifying part about this is that there’s no law. None. You can be a US citizen, minding your own business one day, and the next be transported to an unknown location, placed in sensory deprivation for 1,301 days, pumped full of LSD and PCP, beaten within an inch of your life, shocked with electrodes, mock-executed, water-boarded, etc. The ‘interrogators’ are limited only by their imaginations. There are no written rules.

“Sensory deprivation” is a rather euphemistic phrase for what I am convinced is the most horrifying and brutal torture ever devised. The procedure is precisely as it sounds – you are “deprived” of your senses – but that description fails to convey the sheer terror involved. Imagine: you are sitting there with blackout goggles, thick ear-pads, and heavy gloves. You float in a sea of nothingness, seeing, hearing, smelling, and feeling nothing. You don’t know how long this will last – maybe a day, maybe a week – but what’s more, you feel your sensation of time and space breaking down. Just imagine it! Total silence and darkness for days, weeks at a time!

Jose Padilla, who remained this way for 1,301 days.

Donald O. Hebb, the psychiatrist who pioneered the technique, found that his subjects experienced “acute hallucinations” after just one day in the “deprivation chamber” and “total psychosis” after only two days. He estimated that six to eight days would be the maximum anyone could endure while keeping their sanity intact, and later claimed he had “no idea what a potentially vicious weapon this technique could be”. Jose Padilla was kept in sensory deprivation for 1,301 daysthat is, 43 months. Can you imagine it – continuous silence and darkness for almost four years? They say “don’t try this at home”, but do try it! Sit in a room for just one day with blackout goggles and earmuffs on, wearing thick gloves, and preferably shackled to a fixed object. I have nightmares about this. But for Jose Padilla, a US citizen, it was all too real.

Finally, I should hasten to remind the Obama Administration, who has already endorsed kidnapping, interrogation by torture, and indefinite detention, that these practices are illegal via the Supreme Court’s Hamdan v. Rumsfeld decision, which stipulates that all detention practices must conform to Common Article 3 of the Geneva Convention. I wonder if this constitutional lawyer cares with the Supreme Court thinks.

The Times, Habeas Corpus, and those Bad Ol’ Terrorists

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The Times continues its faux-reporting over the “controversy” that has erupted over whether we should act like tyrants and keep “terror suspects” in cages indefinitely without trial, or act like decent adults and follow the rule of law. Previously, The Times came out in support of the former option, happily announcing that “Detainees will be Held, but not Tried” – but as the political winds shift, so do does the leading newspaper, which now plumps for the worst aspects of both, much like President Obama. They even invoked the mysterious “experts”, who, apparently, do not include the Supreme Court.

As Jane Mayer expertly analyzed in a recent New Yorker, the Justice Department is now in a state of civil war. One one side, Attorney General Eric Holder, who advocates that “terror suspects” be vetted in a court of law to determine what, if anything, they’re guilty of. He is joined by a majority of our Supreme Court, human-rights activists, and other so-called sympathizers of terrorism. Opposing him stands Rahm Emanuel, the President’s chief of staff, who contends these “enemy combatants” deserve no quarter and should be tried, without evidence, before a “military tribunal” after being held indefinitely (after an interrogation by torture). Joining Mr. Emanual, ironically, is the Tea Party faction, along with “Republicans” in general, all of whom claim that allowing suspects of terrorism a fair trial stands tantamount to treason.

President Obama, as is his wont, has opted for a “middle path”, as The Times reports today. Some detainees, specifically those whom he is sure to convict, will be publicly tried, and the rest will just be held indefinitely because it’s impossible to convict anyone you’ve tortured a confession out of without looking like a butcher.

Granting civilian trials to some “terrorists” and secretly sentencing the others creates a multi-tiered justice system wherein only the suspects for whom conviction is assured will be allowed to go to trial. This is pre-judgment and worse.  It it is a system that does away with even the pretense of caring whether or not these detainees are actually guilty. The government clearly seeks a few nefarious-looking Terrorists to be convicted by a civilian jury – thus proving that “the system works” – and then machinery to convict the rest of the suspects who could not be tried by jury because they were interrogated by torture and their cases would be thrown out (as, indeed, many have already).

It’s worth remembering that a vast majority of Guantanamo detainees were guilty of nothing more than bad luck. An ex-Bush official is on record saying that most of the people we held there were totally innocent.

But beyond this, The Times completely neglects to mention that these military commissions are illegal. The Supreme court has ruled, in numerous landmark cases, that the whole military commissions process is unconstitutional.  Hamdan v. Rumsfeld effectively nullifies the necessary sections of the Military Commissions Act, and Hamdi v. Rumsfeld restored Habeas Corpus and Sixth Amendment rights (the right to a speedy trial) to detainees.

In fact, the majority opinion of Hamdan states that all detainees be given a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples“, and clearly states that the commissions system set up in Guantanamo does not fit that requirement.

Any article discussing discussing military commissions has the duty to mention these cases, but since they’re  inconvenient to the prevailing narrative, they become “non-newsworthy”. I’m sure the “experts” they quote (nearly all Bush flunkies) know better.

One hears often from opponents of civil liberties that it’s “borderline criminal” to read a terrorism suspect his rights, that such actions provide “comfort to the enemy”, or as Ms. Palin thundered in her memorable Tea Party speech, that we’re allowing Terrorists who “hate our freedoms” to “lawyer up”. As Scott Brown, Massachusetts Senator and Tea Party darling once remarked: “Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree.”

But of course it is not for this charlatan to decide, but for the Supreme Court, who, unfortunately for Mr. Brown, has consistently ruled in favor of detainee rights. And for the record, the Constitution prescribes the relevant clauses to protect the rights of people who have been accused of a crime but not yet found guilty, much like these so-called “terrorists”. Until convicted in a court of law, these people are, by definition, guilty of nothing.

The reasoning employed by the Palin-Brown faction makes the dangerous assumption that anyone the government accuses of terrorism magically becomes a terrorist. In the warped mind of a Tea Partier, suspicion is proof. This works fine for most people, so long as it’s only brown Arabs with weird squiggly writing whom we lock up in cages with no trial, but the danger of promoting totalitarian practices is that you never quite know against whom they’ll be used next.

Postscript:

It’s also worth mentioning that every other country that has had problems with terrorism – India, Greece, Spain, etc. – have all found ways to deal with it within their already existing legal structures. They saw no need to create new levels of “justice” wherein some suspects get trials and others simply go to jail forever.

Supreme Court Allows Corporations to Donate Anonymously

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The Times reminds us of an unsavory after-effect of the Supreme Court’s recent Citizens United v. FEC case. Under the decision, corporations no longer have to disclose to whom they donate or how much, effectively destroying organizations like Opensecrets.org that attempt to track the influence of money in politics. This is terrible news.

Experts say the ruling, along with a pair of earlier Supreme Court cases, makes it possible for corporations and unions to donate anonymously to nonprofit civic leagues and trade associations. The groups can then use the money to finance the types of political advertisements that were at the heart of last month’s ruling.

Democratic Congressional leaders called the loophole dangerous, and they have proposed legislation that would require nonprofit groups to identify publicly the sources of financing for their political advertisements.

Citizens United and the Media

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Columbia Journalism Review has a great roundup of various media responses to the Citizens United case and what it means for the media. I guess I don’t have too much more to add, except that with the floodgates open to corporate “donations” for various campaigns, our corporations will have a much greater incentive to pony up the cash to keep the media’s mouth shut. And we all know our major newspapers are just immune to bribery, right?

“A lot of corporations right now are probably having frank and interesting discussions around how they want to use this,“ says Levinthal, a former politics reporter for the Dallas Morning News. “One great story might be trying to get ahead of the decisions they are going to make, and asking local companies how they anticipate using this before they do.”

“I think it’s going to be essential, to put it in old fashioned terms, to follow the money here,” says Wertheimer. “Public disclosure only works if someone discloses the information to the public, and I believe that the media has a very big responsibly to help fill that role.”

“It’s my hope that we’re going to get comprehensive disclosure requirements for corporations and labor unions, and from intermediate groups that are used as pass throughs, and from the people that are spending the money. But on top of all of that, investigative reporting above and beyond the disclosure information has an important role to play. These are very hard stories to do, and in the past there hasn’t been a lot of appetite among editors for taking the time to do investigative stories that may be very time consuming, but they’re essential now,” says Wertheimer. “It’s straightforward, and basic, and extremely important.”

Written by pavanvan

February 12, 2010 at 5:27 pm