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The Berkeley Tempest

Spencer Ackerman — Thu, 08 May 2008 17:38:13 GMT

An economics professor at the University of California-Berkeley has filed a formal grievance to investigate the tenure of one of Berkeley's most controversial faculty members: John Yoo.

Yoo, a tenured Berkeley law professor since 1999, joined the Justice Dept.'s Office of Legal Counsel in 2001. There, he wrote numerous legal memoranda used to justify the administration's decision to allow the torture of Al Qaeda detainees.

In a recently released memo, dated Mar. 16, 2003, Yoo wrote that any statute passed by Congress to prevent torture, "would conflict with the Constitution's grant of Commander in Chief power solely to the President." Thomas Romig, who was the Army's judge advocate general when the memo was written, told The Washington Post that Yoo's memo effectively argued "there are no rules in a time of war."

Yoo returned to Berkeley's law school, formerly known as Boalt Hall, in 2004, to the discomfort of many faculty members on the famously liberal campus.

Yet no one on the faculty took action against Yoo until Bradford DeLong, a former Clinton administration economist, wrote a letter to the chairman of Berkeley's Academic Senate, William Drummond, on Tuesday. The letter asked Drummond to create a fact-finding committee to determine Yoo's culpability for the torture of detainees. "If you have not read John Yoo's recently-released 'Torture Memo,' and have not been as horrified and appalled as I am, I strongly urge you to read it in full," DeLong wrote to Drummond.

The economics professor's decision to push back on Yoo's Berkeley career came, as DeLong explained, "because I think somebody should, and I happen to be here."

"To fail to state that Yoo's interpretations are beyond the pale is to endorse them as lawyering-as-usual," DeLong said.

DeLong recognizes his move raises serious questions about academic freedom. U.C. Berkeley School of Law's dean, Christopher Edley, recently issued a public defense of Yoo on those grounds. "My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley," Edley wrote in an open letter called "The Torture Memos And Academic Freedom" on April 10. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless."

DeLong says he does not take the argument lightly. He said he was "gravely" concerned with the academic-freedom implications of his own decision -- and debated with himself and colleagues for weeks before issuing his letter.

"We have universities and professors because we think their thoughts and their judgments have validity, and if one concludes that, say, it is time to overthrow the government of the United States by force and violence then he or she is under an obligation to see that and we need to hear that," DeLong said. But "the questions in Yoo's case are knottier," he added. There are serious questions about whether, for instance, Yoo "cross[ed] the line to become an actual conspirator to commit crimes," or whether Yoo's advocacy of torture "rise[s] to the level of grave scholarly misconduct?"

"Are any of these three grave enough to warrant censure or dismissal?" DeLong said. "I don't think I know. But I do find myself leaning that way."

Yoo, of course, is not without his defenders.

"John Yoo is an important scholar of the American presidency," said Pepperdine University law professor Douglas Kmiec. "His government service has been controversial, but also rendered during a time of enormous uncertainty in terms of the nation's security. One can debate various aspects of Professor Yoo’s legal reasoning, but the day when disagreement of that type gives rise to university 'investigation' upon 'threatened loss of tenure' is the day the University of California at Berkeley should depart the field as a serious academic institution."

Even some of Yoo's prominent detractors are discomfited by the idea of censuring him. Former Office of Legal Counsel attorney Marty Lederman wrote on his blog that he was "uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor" shortly after Edley issued his open letter.

Stephen Gillers, a legal-ethics specialist at New York University School of Law, took a Solomonic approach to the Yoo question. "Edley also says that as a pubic institution, the University of California guarantees Yoo free speech," he said. "That's true, but I don't think advice to a client is a first amendment protected activity. Lawyers gets punished for bad advice all the time (it's called malpractice) and sometimes, though rarely, prosecuted for advice that aids a crime or that is a crime. Yoo's views were not in a law review article, where the first amendment would apply."

But Gillers largely disagreed with DeLong. "I don't think Yoo's tenure should be challenged even if his advice was wrong, not even if it was egregiously wrong," he wrote in an email. "Academic freedom protects the right to be a fool. The only basis for questioning Yoo's tenure would be if he intentionally (knowingly and purposely) offered wrong or incomplete advice in order to give the representatives of his client (the president, the secretary of defense, the vice president) the comfort to do what they wanted to do anyway. The client of course was not them but the U.S."

A spokeswoman for U.C. Berkeley School of Law, Susan Gluss, declined to comment. Yoo did not return an e-mail inquiry.

As for next steps even as Drummond considers DeLong's inquiry later this month, Gluss pointed to a statement by George Breslauer, U.C.-Berkeley's executive vice chancellor and provost, that cast doubt on the prospects for Yoo facing reprisal. "Whatever we may think about the policies John Yoo has advocated," Btreslauer said, "for the university to discipline him would be an infringement of his academic freedom."

DeLong said he believes Yoo should face some form of punishment.

"For the university to take no note of Yoo's "Torture Memo" is for it to endorse Yoo's claim that this is lawyering and law professing as usual," he said, "that Yoo has some legitimacy when he claims, for example, that the president can legally order the torturing and maiming of prisoners and that Congress has no power to restrain him even though the Constitution explicitly gives Congress the power."

Full disclosure: the author of this piece is a friend of DeLong's.

Torture and the Law

Spencer Ackerman — Fri, 18 Apr 2008 12:59:39 GMT

With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees. However, a new admission from Bush last week has some legal analysts contending that the case for such prosecution has gotten significantly stronger.

ABC News reported on Apr. 9 that then-National Security Adviser Condoleezza Rice chaired an informal panel of top administration officials that approved specific brutal interrogation tactics for use on three suspected Al Qaeda detainees. The panel consisted of Vice President Dick Cheney, and former administration officials -- Donald H. Rumsfeld, then defense secretary, Colin L. Powell, the former secretary of state, George Tenet, the former director of the Central Intelligence Agency, and John Ashcroft, then attorney general. This group debated for use on detainees -- and eventually approved -- methods of abuse like being "slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding," ABC reported.

On Apr. 11, Bush told ABC that he was personally aware of the panel's discussions. "Well, we started to connect the dots in order to protect the American people." Bush said. "And yes, I'm aware our national security team met on this issue. And I approved."

This disclosure presents a nested series of legal implications. "I predict that there will be calls for top administration officials to be prosecuted in an international court for war crimes," said Erwin Chemerinsky, a civil liberties expert who teaches at Duke University Law School. "This meeting supports the involvement of top officials -- including the president -- in approving torture."

"If you, as an individual, order such conduct, you're culpable under the aiding-and-abetting provision of federal law," said Aziz Huq, director of the Liberty and National Security Project at New York University's Brennan Center for Justice. "There is at least a colorable theory, a credible case, for federal criminal liability here."

That theory, however, depends on whether the administration's 2002 meetings -- and Bush's approval -- rose to the level of an operational order. The treatment of the three detainees, which Huq says was a "violation of the Federal Torture Statute," included the employment of several of the techniques reportedly considered by Rice's panel, including waterboarding. Currently, the Justice Department has an investigation open into Jose Rodriguez, a former CIA official who destroyed videotapes of those interrogations.

"In my view this is all patently illegal on many different grounds -- particularly as a violation of Common Article 3" of the Geneva conventions, said Martin S. Lederman, a former lawyer in the Justice Department's Office of Legal Counsel who now teaches law at Georgetown University. "But as a practical matter, there's little likelihood of any legal exposure -- and virtually none of domestic federal prosecution, because the president and DOJ concluded it was legal."

The chain of events leading from Rice's panel to the CIA's use of the techniques that the panel apparently discussed is not publicly known, and no official inquiry into it exists. To make a case against Bush himself -- regardless of the likelihood that he will never face charges -- knowing that is essential.

"He has his fingerprints on torture," said Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, "but did he grip the whole thing? The real question is, what level of decision-making was the president involved in?"

Not every legal scholar is impressed by Bush's disclosure. Douglas Kmiec, a conservative law professor at Pepperdine University, contends that the statutes in question are too vague, and the facts of the matter too obscure, to congeal into an actual case against the president. "The whole difficulty in this area is the level of generality that exists in the international agreements that the U.S. has participated in and the manner in which those were ratified by the United States -- obviously, particularly with the Convention Against Torture," Kmiec said. "But where the slippage is, in terms of legal analysis, comes with what those words mean in terms of domestic law. If I've understood matters correctly, we've tried to understand [the convention] in terms of our own Bill of Rights and the 'shock-the-conscience' standard -- which is a standard that's far from self-evident."

As a matter of providing factual clarity, Fredrickson said a coalition of civil-liberties organizations, led by the ACLU, is drafting a letter to the congressional leadership urging the creation of a bicameral commission into both the facts of the torture and the legal implications. An implication of Rice's meetings is that the Bush administration appears to have effectively decided it would not bring charges against itself for criminal behavior.

"No one in the executive branch is free of the taint of involvement with the 2002 interrogations," said Huq, of the Brennan Center. "The whole idea of the executive branch immunizing itself becomes much more worrying than in other cases. It's really the right hand absolving the left hand of what's been done."

Fredrickson wants the commission modeled after the Church and Pike inquiries of the 1970s that revealed massive and systemic illegality within the intelligence services. "It's a great model because it was really the mechanism for bringing lot of illegality -- not just by the Nixon administration but prior administrations -- to light," she said. "That might be more appropriate, to use a wider lens, because panorama of illegality is quite broad."

Kmiec said he could conditionally support such a commission, provided it didn't degenerate into a partisan witch-hunt. "If the commission would advance the understanding of the U.S. as to its obligations, and demonstrate to the world our seriousness of purpose, then it's a good idea," Kmiec said. "If the purpose of the commission is just a surrogate way of establishing a special-counsel investigation into the actions of the sitting president and vice president, then I think it is likely to degenerate into partisan bickering and not accomplish very much. Much would depend on the objective of the commission and its composition."

But the likelihood of retributive measures against the Bush administration for torture remains remote. Huq observed that the "political appetite for that is nil," since "an excessive of zeal for prosecuting national-security activities, historically, hasn't happened." His preference is to legislate the videotaping of all terrorism interrogations. A measure to do that, introduced and supported by Rep. Rush Holt (D-N.J.), has been introduced, but it has no schedule for a mark-up, according to Holt's office.

Kmiec said that the ultimate arbitration of the torture debate will occur at the polls. "The way our constitutional system envisions accountability on questions such as this is accountability through electoral choice," he said. The president made his choice. The people will now make theirs."

Spitzer Violated the Public Trust -- Potentially the Mann Act

Matthew Blake — Mon, 10 Mar 2008 20:30:53 GMT

The Citizens for Responsibility and Ethics in Washington has launched far reaching investigations the past year into corrupt lawmakers and White House secrecy. But now the watchdog is chartering new waters: New York Governor Eliot Spitzer's potential violation of the Mann Act.

As everybody in the entire virtual world now knows, Spitzer admitted involvement this afternoon in a prositution ring. CREW immediately fired off a press release that the Governor has likely violated the Mann Act (yes, the Mann Act), a federal law with a maximum penalty of 20 years in prison.

The nearly 100 year-old act is designed to ban interstate transport of females for immoral pruposes. Spitzer was heard on a wiretap arranging for a prostitute to travel from New York to Washington to meet him in his hotel room.

As a former State Attorney General, didn't Spitzer know he was on the wrong side of the Mann Act? How many times can I write "Mann Act" in one Blog post?

Court of the People?

Herman Schwartz — Fri, 29 Feb 2008 13:42:55 GMT

Democratic presidential candidates rarely mention the courts, while Republicans talk about them all the time. The reason is obvious: Both sides believe talking about the courts raises socially incendiary issues like abortion and gay marriage that can hurt Democrats and help Republicans.

Democrats needn’t be so frightened. Most Americans now worry more about health care, Social Security, retirement benefits, product safety and global warming than about whether gays get a marriage certificate. The courts play a crucial role in these matters, and the reactionary views of Chief Justice John Roberts and his allies on both the Supreme Court and the lower courts threaten to shred whatever benefits and protections these laws provide.

But thinking about the courts is important to do now. The next president will probably have two, maybe three, appointees: Justice John Paul Stevens is nearly 88; Justice David Souter, 68, is eager to return to New Hampshire, and Justice Ruth Bader Ginsburg, 75, has had cancer. Numerous vacancies on the lower courts are also inevitable. The appointments that the next president makes could shape the federal judiciary for decades.

Though most public attention has focused on the social issues, these cases come before federal judges only occasionally, and have not been the primary target of conservative and right-wing judges. A more frequently pursued goal -- and one that rarely receives attention -- is shutting the court house door to those wrongly injured by public officials and others.

This effort began in earnest in 1972, when the late Chief Justice William H. Rehnquist and Justice Lewis Powell advanced to the court. In the 80s, the Reagan-Bush appointees, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O’Connor, joined in. These justices overturned prior decisions, concocted or expanded restrictive constitutional theories and interpreted federal statutes in ways Congress never intended.

Here are a few examples:

Standing

Persons who can show they have actually been injured by unlawful conduct have “standing” -- the right to sue -- in federal court. Shortly after Rehnquist and Powell joined the high court, four narrowly decided cases denied taxpayers and citizens the right to judicially enforce the constitutional requirements that all government expenditures be made public and that no member of the armed forces –- like Sens. Barry M. Goldwater and Lindsay Graham, reserve military officers –- may serve in Congress.

Two other decisions prevented welfare recipients from challenging the IRS’s failure to require non-profit hospitals to serve the poor if they wanted a tax exemption, and threw out suits by low- and moderate-income residents of Rochester, N.Y., who challenged a suburban zoning law effectively keeping them out of the suburb. Then, in 1984, a 5-4 majority ruled that children in formerly segregated schools in seven states could not challenge the Reagan administration IRS’s grant of tax exemptions to local private schools that excluded black children, allowing whites to avoid desegregation. Later cases have narrowed standing even further. Last June, a 5-4 decision blocked a suit against some of President George W. Bush’s faith-based initiatives.

Preemption

When Congress passes a statute, it may want to exclude any state involvement. Until recently, a concern for states rights, long a favorite of the right, usually resulted in not barring state involvement in enforcing a statute -- unless Congress made clear it wanted to keep the states out. But when state law is more protective of consumers, workers, investors and others than the federal law, that has now changed.

Just last week, the Supreme Court ruled that Medtronic, the maker of a catheter approved by the Food and Drug Administration that exploded and killed a patient, was immune to a state damages suit (there is no federal right to damages). Sen. Edward M. Kennedy, the Senate sponsor of the bill, and Rep. Henry A. Waxman, who was on the House Committee that wrote the federal law on medical devices, protested angrily. Kennedy said, “Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by defective devices.” The decision will result in blocking many personal injury suits for heart stents, breast implants, artificial hips and other devices that prove defective.

Medtronic is not the only such decision. The court barred state law suits in cases involving efforts to limit tobacco advertising to minors, as well as suits by defrauded investors, retirees, automobile accident victims and others.

Private suits to enforce federal statutes

In some cases, Congress doesn’t make clear that beneficiaries of legislation, like Medicare, Medicaid and anti-discrimination laws, may sue for violations of their rights under those laws. It is often obvious, however, that they should have that right: government agencies move sluggishly, and no one has more of an interest in pursuing a matter than the intended beneficiary.

Decisions during the 1970s and 80s, a period that Scalia recently called “the bad old days,” reflected this attitude. The courts authorized suits by those injured by public or private misconduct unless the law indicated otherwise. Recently, however, the Supreme Court’s conservative wing has made it clear that, in Roberts’'s words last week, there is a “new approach to statutory interpretation” and potential plaintiffs will not be allowed to sue unless Congress explicitly says they can. This will require changing numerous statutes passed on the assumption that private suits would be allowed. In today’s gridlocked Congresses, that will be difficult.

Attorneys fees

Many victims of civil rights and other violations are too poor to pay for a lawyer, and few lawyers are eager to take such cases, especially if there is little money. Congress, therefore, decided to reverse the usual rule that each party covers its own costs and require the award of legal fees in civil rights cases to the “prevailing party.”

Here, too, the court has ignored what Congress intended. In 2001, a 5-4 majority relying on a dictionary definition of “prevailing party” ruled that if the defendant abandons its wrongful conduct in response to a suit, but there is no favorable judgment or court-ordered settlement, no fees will be awarded to the plaintiffs’ lawyers-- though the suit brought the plaintiffs all they wanted. All but one federal appeals court had ruled the other way. In response to the decision, former representative Father Robert Drinan, floor manager for the attorneys fee legislation, complained that the decision “sets aside the explicit directives of Congress” [letter WP 7/31/2001]. The decision encourages defendants to stall, run up the costs and, if they then expect to lose, change their policy before trial.

National Security

The most recent attempt to shut the courthouse door is the White House effort, supported by many Reagan-Bush judges, to block any judicial scrutiny of the administration’s actions toward detainees at Guantanamo, trials of alleged war criminals by military commissions and the government’s warrantless electronic surveillance. But for the drift to the other side by Justice Kennedy, this effort would have succeeded. For many of the Bush-Reagan appointees on both the Supreme Court and the lower courts have given the administration all, or almost all, of the shield it wanted -- often extending state secrets and judicial deference principles far beyond prior decisions. Because some of these cases are still pending, the outcome of this effort is still uncertain.

These doctrines and stratagems are all judge-made and reopening the courthouse doors to citizens seeking some justice will require a radical change in the makeup of the federal judiciary.

If Sen. John McCain wins, however, he is most likely to continue the Reagan-Bush model -- if only because he is sure to anger the right-wing in his party and he will need to appease them. Indeed, Dr. James Dobson has already announced he will not support McCain because the senator helped broker a deal on judicial appointments in 2005. McCain has how been advised to stress his intention to nominate judges like Roberts and Alito, which he has already begun to do.

Voters should keep this important role of the courts in mind -- no matter what the candidates do or don’t say.

Herman Schwartz, a professor of constitutional law at American University, is the author of "Right Wing Justice: The Conservative Campaign to Take over the Courts" and "The Rehnquist Court: Judicial Activism on the Right."

EFF, ACLU Intervene in Wikileaks Case

Laura McGann — Wed, 27 Feb 2008 15:05:39 GMT

Last week a Federal judge in San Francisco "shutdown" the whistleblower site Wikileaks over a private dispute between a Cayman Islands bank and a disgruntled former employee. The former employee posted company documents to Wikileaks, which the bank claims violated a confidentiality agreement and banking laws.

Online rights group, Electronic Frontier Foundation and the ACLU have now intervened in the lawsuit, the bank filed against the site and Dynadot, Wikileaks' domain registrar. EFF and ACLU argue that Judge Jeffrey S. White should not have ordered the closure of the entire site -- an unecessarily far-reaching move.

From the groups' motion (pdf):

The court has entered a "permanent injunction"...even though most of the documents and other materials on the site accessed through that domain name (the "WIkileaks website") have nothing to do with the controversy between the Plaintiffs and the Defendants.

Clearly there is a First Amendment rights question at stake here for the poster, but perhaps more important is the broader issue at stake for media consumers:

In addition to protecting the rights of those who engage in expression themselves, the First Amendment "protects the public's interest in receiving information." ... Moreover, "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."

Good luck EFF!

The Supreme Court v. Reality: FDA Version

Matthew Blake — Wed, 20 Feb 2008 23:49:47 GMT

Today the Supreme Court ruled 8-1 that you can't sue a manufacturer for a defective medical device if the Food and Drug Administration has already approved the device. Legally, perhaps, the decision has its merits. But practically the decision ignores the myriad scandals surrounding the agency that call its core competency into question.

Justice Scalia wrote in his majority opinion that the agency spends 1,200 hours reviewing one device application before granting approval. But it also came to light this week that the agency spent zero hours inspecting a Chinese plant that produced the blood-thinning drug Heparin, distributed by Baxter International Inc. Heparin has been linked to four deaths and hundreds of accidents. The FDA says it mistakenly went to the wrong plant.

Both the House Committee on Oversight and Government Reform and Energy and Commerce Committee are pushing for an overhaul in the agency. Two weeks ago, heads of both committee's wrote a letter to the President calling on the FDA's science advisory board rip up the current budget and start all over again. And this morning Energy and Commerce Subcommittee on Oversight and Investigations Chairman Bart Stupak (D-Mich.) told the Wall Street Journal: "[If Americans] knew how little the FDA did to assure the food and drug supply, if the truth ever came out...people would be marching in the street."

It's, of course, not the Supreme Court's fault that the F.D.A. is in crisis. But the high court may end up having a major impact in determining the the agency's responsibility- they are considering three other cases that involve patients suing for drug and drug labeling.

Today's ruling suggest that the F.D.A. is the final check on the health care industry. That's a scary proposition for health care patients.

When Congress and the President Face Off

Jack N. Rakove — Wed, 20 Feb 2008 15:09:14 GMT

With “trust in the people,” declared President George W. Bush in closing his final State of the Union Address, “let us go forth to do their business.” It is one of the sad truisms of American politics that politicians find it far easier to profess their trust in us than the other way around. The last thing we expect from the national government — and especially from the current divided government — is that it will go forth to do “our business,” whatever that may be, in some blissful state of shared purpose.

Impasse, not progress, has prevailed in Washington since the Democrats recaptured control of Congress in the 2006 elections. Americans seem little happier with the new leaseholders on Capitol Hill than with the old Republican majority they displaced. Nor did the loss of Congress chasten the ever self-confident president. Far from repenting his devotion to being a divider rather a uniter, the president has largely clung to the positions his administration had previously laid down. As a result, the perception that partisan gridlock remains the name of the Washington game is intact.

True, Democrats have found it easy enough to investigate -- though even here the administration has held the line on expansive claims of executive privilege and the sanctity of its internal deliberations. But if Democrats want to legislate, their slim majorities cannot withstand the vetoes that Bush has finally had occasion to use. Then, too, there is the special bottleneck in the Senate known as the cloture rule. No one has to mount a real filibuster to tie up the Senate any more, as Jimmy Stewart heroically did in "Mr. Smith Goes to Washington." If the minority has the 40 votes needed to block the close of debate, a virtual filibuster will do. No cots in the cloakroom for these hardy orators.

Can this possibly be the way our constitutional system was meant to work? Can this possibly be the way our constitutional system was meant to work? It’s one thing to praise the principle of checks and balances as an institutional antidote to the danger that the concentration of power in the same hands was the very definition of tyranny. But did the framers of the Constitution really mean to disperse power so thoroughly as to make impasse and deadlock the normal state of government?

Should not majorities who, against the odds, manage to recapture control of Congress be allowed to govern? Why should a politically discredited president, stubbornly secure in his faith in himself, and his heavenly father, get to play out the clock one last year?

Thoughts like these drive many scholars to distraction. The conventional academic wisdom has long been that our form of ostensibly democratic government is vastly inferior to any effective parliamentary system. There, majorities who win elections actually get to rule, unfettered by the “chokepoints” of bicameral legislatures and executive vetoes. Here victory in an election guarantees nothing. Pundits will haggle over how much of a mandate a victorious president or party can claim. But mandate, schmandate. Once a new administration or congressional majority takes power, all the institutional hurdles to legislation remain.

Perhaps the framers of the U.S. Constitution would have adopted the parliamentary model had it been there to emulate. But that model was not available in 1787 in the full-blown form it would take in the next century. Perhaps the framers of the U.S. Constitution would have adopted the parliamentary model had it been there to emulate. But that model was not available in 1787 in the full-blown form it would take in the next century. In Britain, the ministers who ran the king’s government had to command a majority of the House of Commons to stay in power. But the king still had a crucial say in deciding who would serve in his name. Elections in the minuscule British electorate were distinctly local affairs, and rarely affected the king’s choice of ministers or the balance of power in Parliament.

So in forming a more perfect union, the American framers had to innovate more than we sometimes realize, and the presidency proved their greatest challenge and innovation of all. In their time, ideas of executive power remained either monarchical or ministerial. In 1776, Americans had rejected both -- turning the governors of the individual states into mere agents of a dominant legislature. Only two of the 11 states that adopted new constitutions with independence allowed the people to elect their governors. The others required them to be chosen by the legislatures, one year at a time.

Thus, when the framers assembled in 1787, the question of how to elect or appoint a president became, as James Madison put it, the object of “tedious and reiterated discussions.” Simply put, there was no way to imagine what kind of political influence the president would wield. That is why the framers were still puzzling over the presidency a bare 10 days before they adjourned; and also why they saddled posterity with the zany idea of the Electoral College.

Far from expecting the presidency to be the focal point of political competition and influence, they probably expected most presidents to be more like Franklin Pierce or Chester Arthur than Andrew Jackson or either Roosevelt. Madison’s own expectation was that the House of Representatives would be the dominant institution. As the one branch of government that the people would actually elect, it would sweep all before it because it alone would speak for public opinion.

Soon enough, of course, Madison learned he had been wrong – and not only because a commanding figure like George Washington, with a calculating advisor like Alexander Hamilton, proved that the presidency was a far more potent office than anyone in 1787 (other than Hamilton) could have conjured.

Whether or not one buys the currently fashionable theory of “the unitary executive,” the concentrated decision-making authority of the president can always be wielded far more efficiently and quickly than the balky procedures of Congress, hamstrung by its own procedural rules and the institutional jealousy of its two houses. Those conditions often prevent presidents from getting their way. Presidents propose, the saying goes, and Congress disposes -- but in all but the most exceptional circumstances, they also deter Congress from superimposing its will on even the most discredited presidents.

This, too, drives academics, bloggers and just plain concerned citizens to distraction, but that’s your Constitution at work.

Jack N. Rakove, a professor of history and political science at Stanford University, won a Pulitzer Prize for his book, "Original Meanings: Politics and Ideas in the Making of the Constitution."

Wikileaks 'Shutdown'

Laura McGann — Tue, 19 Feb 2008 21:01:24 GMT

A federal judge in San Francisco ordered Web-hosting company Dynadot to pull the plug on Wikileaks today, a site created for goverment and corporate whistleblowes with documents "that the world needs to see." The judge handed down the permanent injunction after a Cayman Islands bank sued when company documents appeared on the site. The federal judge's move, of course, doesn't actually delete Wikileaks, which was designed to withstand court-ordered shutdowns. The site -- reportedly started by a group of international political dissidents, mathematicians and journalists -- is still accessible via its IP address and mirror sites.

What Judge Jeffrey S. White's decision does do is raise an important legal question. As NY Times' Adam Liptak points out right off the bat, this case is a "major test of First Amendment rights in the Internet era." Liptak reports that court orders restricting the desemination of specific pieces of information "are disfavored under the First Amendment and almost never survive appellate scrutiny." Nevermind shutting down an ENTIRE site. Way to err on the side of caution, Judge White.

Habeas Case Quietly Heads to Supreme Court

Aziz Huq — Mon, 11 Feb 2008 01:00:47 GMT

Illustration by: Matt Mahurin

This week, the solicitor general will file an appeal in the U.S. Supreme Court on a little-watched case from Guantánamo. But this case demands attention because it presents in stark relief the two key questions of the government’s extraterritorial detentions: Has the government been lying when it claims to have detained a hard core of Al Qaeda and the Taliban at Guantánamo? Can the government suborn the judiciary into covering this up?

Until now, all eyes have been on a case called Boumedienne v. Bush, argued before the Supreme Court on Dec. 5, 2007. In Boumedienne, the court heard the Guantánamo detainees’ challenge to recent legislation that stripped them of the historical right of habeas corpus -- which allows them to challenge their detention in federal court.

Despite the fanfare, a majority of justices have already signaled that the “Great Writ” -- as habeas is known -- does, in fact, extend to Guantánamo. The real question is: what happens next.

Under longstanding doctrine, Congress is permitted to remove habeas jurisdiction as long as it provides an “adequate” substitute. In the December hearing, the court's swing vote, Justice Anthony M. Kennedy, indicated his interest in probing whether there was an “adequate substitute.”

That there is any question of an “adequate substitute” is due to a statute passed by Congress in 2005. It provides an alternative path for Guantánamo detainees to challenge their designation as “enemy combatants” using “Combatant Status Review Tribunals” or CSRTs.

The tribunals are hastily assembled hearings, created in 2004 after the Supreme Court ruled that federal-court jurisdiction extended to Guantánamo. In tribunal, the detainee is hauled from the cage, where he has been held basically incommunicado for three-plus years, to a court. He is usually told that the government has evidence that he is an “enemy combatant” and that he must overcome this to gain his freedom. In 96 percent of cases, the government does not present any documentary evidence of witnesses. All this is classified, so the detainee cannot see it. He must disprove what he cannot even know.

The detainee has no lawyer. He is generally denied the ability to call witnesses. In more than four-fifth of cases, the tribunal reaches a decision the same day. If it rules for a detainee, the prisoner is not told, and often a second CSRT is convened.

The issue in the “sleeper” case, Bismullah v. Gates, is what sort of review of CSRT decisions the designated federal court, the D,C, Court of Appeals, can engage in. This arcane procedural question -- about the scope of judicial review -- is the hinge for determining whether the government can knowingly detain those who are innocent of any terrorist connection, and whether it can suborn the courts into helping it do so.

In October 2007, the D.C. circuit court issued a protective order laying out the conditions of its review of CSRTs. Critically, the court held that its review would require the government to produce “all reasonably available relevant information” (language from Pentagon regulations) — for example, not just the evidence the government gave to the CSRT, but all the evidence gathered about a detainee.

Writing for the majority, Chief Judge Douglas Ginsburg stressed the need for the full record. “There is simply no other way," he wrote, "for the counsel to present an argument that the [government] withheld exculpatory evidence from the Tribunal in violation of the specified procedures.” He rejected the government’s position that judicial review be limited to the evidence before the CSRT.

A noted conservative jurist, Ginsberg may have taken note of the affidavit of Lt. Col. Stephen Abraham, an army reservist who worked at Guantanamo. Abraham collected the evidence for the CSRTs. His testimony is worth a careful read. Abraham explains that he was never given exculpatory information; that there was no effort to gauge the accuracy of evidence, and that when a decision favorable to the detainee was reached, a panel would have another hearing to address “what went wrong.”

The government must have been expecting Ginsburg and his follow conservative, Judge Karen LeCraft Henderson, to defer to it. So, when the ruling came down, the government seems to have wigged out.

First it sought a rehearing from the court—which was denied. Then it sought review from the D.C. circuit. Last week that was denied.

Now they are seeking a stay and an expedited appeal to the Supreme Court on what judicial review of the tribunals comprises— the question the “adequacy” issue hinges on.

Yet, just as the government argues to the Supreme Court that judicial review of the CSRTs in the D.C. Circuit is an “adequate” substitute for habeas corpus, it must now argue that this review is also limited, so that the court can use only the information that the CSRT ruled on.

There are many reasons why the government might be resisting fuller review. It could be that the government, as a matter of principle, believes it should have the power to lock-up indefinitely anyone it deems is a terrorist-combatant. It could be that it has tortured the detainees to get information. It could be that it would rather let a man die of cancer in Guantánamo than follow its own leads to prove his actual innocence -- that he had, in fact, fought against the Taliban.

As troubling as these possibilities are, however, is the reason the government is now giving for resisting judicial review: It does not want judicial review of the record on which it based detention decisions because no record exits. In a Feb. 4 motion to the circuit court, the government said it does “not possess the historical records of materials reviewed by the CSRT.” Hence it explains, in the absence of an expedited hearing by the Supreme Court, the government would be faced what it calls "a highly undesirable choice:" commit a massive military, intelligence, and law enforcement recourses to a burdensome search and gathering process aimed at creating a broad record that would necessarily encompass the material … examined in each … case, in the midst of an armed conflict, commit massive resources to redoing some 275 CSRTs.

This is remarkable. Just consider that the government says it has seized hundreds of the “worst of the worst;” brought them to Guantánamo; subjected them to “enhanced” interrogation methods that may violate international and federal laws against torture and coercion, then denied them a day in court to challenge the facts the detention was based on. It has repeatedly claimed that the Cuban base’s operations yield “valuable intelligence information.” And it has attacked journalists who question its blunt assertion.

Yet has it assembled in one place all information about a detainee? No. The government is holding hundreds of men without any adequate record on why they are being held. This despite the fact that the government asserts that it holds annual reviews of each detention. Yet, the government continues to hold hundreds of men, the majority not as “fighters,” but because they have “some association” with an alleged terrorist organization. And the government insists that it would take “massive resources” to gather appropriate files.

Stated baldly, this means the government is not keeping complete files about the core group of terrorism detainees—presumably some of the most valuable intelligence sources available.

Having detained, perhaps tortured and constructed elaborate sham trials to justify its decisions and hide its mistakes, the government seems now to look to the federal courts to serve as accomplices after the fact. It asks the court to blink when it comes to the testimony of Abraham. It asks the court to set aside the government’s own admissions (revealed in an embarrassed letter after the Bismillah argument) that is has not followed procedures -- for example, it did not appoint officers of sufficient rank to the CSRTs, and instead named junior soldiers who received “approximately two weeks training.”

And it asks the appeals court to participate in what Chief Judge Ginsberg called a “charade”—a calculated effort to get a free-ride on the federal courts’ legitimacy to cover its own error, callousness, and stupidity.

The Guantanamo cases are about far more than the liberty of a group of detainees. In its efforts to avoid accountability for its detention decisions, the government has hedged and equivocated. It has rammed through Congress dramatic restriction on the core Constitutional right of habeas corpus. And now it asks the courts to serve as a rubber stamp for its flawed decisions.

On Feb. 14, the solicitor general will file his petition for review in the Supreme Court. Then the high court will have to decide whether the role of the courts is to bless the errors and abuses of the executive -- or whether it is the role of the courts, as a co-equal branch, to check error and reject lies.

In Solidarity With TPM Muckraker

Spencer Ackerman — Fri, 08 Feb 2008 15:54:20 GMT

This is an easy call, especially since Laura and I used to work for Talking Points Memo. But every journalist and citizen of conscience should stand shoulder-to-shoulder with TPM now that the Justice Department has engaged in a sickening course of petty retaliation.

In late 2006 and 2007, TPM's Josh Marshall, Paul Kiel and Justin Rood relentlessly pursued the U.S. attorney firings. It wasn't easy, either substantively, or against the media tide. Jay Carney at Time sneered, "some liberals are seeing broad partisan conspiracies where none likely exist." Well, they existed. Without TPM, Alberto Gonzales would still be attorney general. Simple and plain.

So what does Gonzales's successor, Michael Mukasey, do? (Or, rather, some anonymous Justice functionary.) Take TPM's investigative wing, TPMmuckraker, off the DOJ press list. Asked about it at a House Judiciary Committee hearing yesterday, Mukasey waved the move away, saying that " I do know that all the press releases should be on our website. So they should be generally available." Notice the subtle implication that TPMm is too lazy to just go to the DOJ website. If I were Mukasey, I would be extremely careful about suggesting that Paul Kiel needs to be spoon-fed a thing. Ask Gonzales about Paul's diligence. Do not get in this man's journalistic gun-sights.
Josh sums it all up well:

Now, as we explained earlier, there are certainly more onerous forms of government harassment than getting kicked off a press list. But this almost comically juvenile stunt is a very telling example that the kind of rank politicization of the department -- our reporting of which seems to have gotten us into this position -- is alive and well at DOJ.

Hear, hear. It's a badge of courage that TPM is on the DOJ enemies' list. But that doesn't make what Justice is doing any less pernicious. As journalists, we need to stand foursquare behind TPM, and constantly remind our readers that the Justice Department is run by retaliation-obsessed crooks, cronies and crapweasels.

Padilla Case Finds a Justice System Failing to Adapt

Aziz Huq — Sun, 03 Feb 2008 01:30:36 GMT

Illustration by: Matt Mahurin

Six years after 9/11, the jury is still out on whether the American justice system is up to the challenge of dealing with terrorism.

The persistent debate about water-boarding -- which Atty. Gen. Michael B. Mukasey’s Senate testimony on Wednesday leaves no clearer -- and the continual problem that is Guantánamo both require far deeper examination. But even the modest examples of success claimed by both the civil-libertarian left and the security-first right reveal the fragility of the U.S. system.

One story both sides now cite as a success is the case of former enemy-combatant Jose Padilla, sentenced last week by a federal judge in Miami to 17 years on terrorism-related conspiracy charges. His conviction draws (almost) to a close a saga that began May 2002, when Padilla was seized at Chicago's O’Hare Airport. One month later, he was designated an “enemy combatant,” subject to indefinite detention without trial.

While government lawyers laud his conviction as the successful punishment of a terrorist; civil libertarians herald it as proof that the criminal justice system works to bring terrorists to justice. Neither side, however, should be popping champagne corks yet. Padilla’s is a journey that casts a worrying light on a justice system that works poorly to protect civil liberties and also fails to further anti-terrorist goals. It should be cold comfort to both sides.

Padilla's story, now relatively well known, needs only brief retelling. At the time of the arrest, Atty. Gen. John Ashcroft accused Padilla of planning a “dirty bomb” attack in the United States. He was held in military custody in South Carolina from June 2002 through January 2006. He was never given a hearing on whether Ashcroft’s claim -- or an evolving sequence of accusations -- held water.

As Padilla languished, his legal challenge to military detention ambled through the federal courts with the alacrity of a sea slug. In 2004, his first effort to secure Supreme Court review failed. Padilla, a five justice majority of the court ruled,, had sued in the “wrong” federal circuit court — so it ordered him back to "go" and don’t collect $200. This “technical” error, not apparent to most component lawyers and certainly not a necessary result, de facto sentenced Padilla to 18 more months of military custody while he filed the same papers in a different court.

Then, on the cusp of new Supreme Court review in late 2005, days before a government brief was due, Padilla was yanked from military custody. He was charged instead in an continuing criminal proceeding in Miami. The charges concerned a conspiracy to provide support to terrorism overseas -- unrelated to Ashcroft’s original allegations. As the conservative Judge Michael Luttig wrote in refusing the government’s request to void the (pro-government) judgment on Padilla’s military detention, it was not a little troubling that the government’s claim of military necessity to seize and detain indefinitely a citizen in the homeland could “yield to expediency with little or no cost.” Luttig warned that the impression of playing fast-and-loose with claims of necessity “may ultimately prove to be [at] substantial cost to the government's credibility before the courts.”

After last week’s sentence, the government can claim justice has been done. Meanwhile, civil libertarians can trumpet both the rule of law and the capacity of the federal courts to resolve complex terrorism cases.

Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

But these are only slim facets of the a larger story. Padilla’s story casts a pallid light on the system of national security adjudication in the United States, which looks singularly ill-adapted to deal with the challenges ahead.

Consider the civil libertarian side of the ledger. It is not just that the government, by controlling the timing of Padilla’s criminal charges, secured a favorable judgment on the scope of its domestic detention authority—and then immunized this from Supreme Court review. It is also that Padilla’s story shows the judiciary's incapacity to address human rights violations. After all, more than three years after his seizure, Padilla’s challenge was still slogging through the federal courts. The incapacity is not a practical failing. Rather, it is the fruit of 30 years' assault on an "activist" judiciary that has created courts neutered of any ability to take on the government over divisive issues.

Delay here seems to have cashed out as practical discretion to abuse. Padilla has credibly alleged that during his detention he was denied medical care, threatened with death and subjected to sensory deprivation and temperature manipulation tactics that likely rank as torture. This did not happen on the night shift of an outlying foreign military base, but in a Southern naval brig. This means torture transpired yards from the Sabal palms, collard greens, and grits of coastal South Carolina. Yet there is little prospect that these accusations will ever be examined in open court. The U.S. government seems to have gotten away with the indefinite detention and torture of a U.S. citizen in the continental United States.

Nor is there much comfort on the national security side. Counting time off for time served and good behavior, Padilla can expect to serve about 13 years in ADX Florence, a maximum security facility near Colorado Springs, known as the “Alcatraz of the Rockies.” [] While no cakewalk, consider this: The mandatory minimum sentence for possession of five grams of crack cocaine is five years. Sentences for larger quantities escalate dramatically, spiraling well above Padilla’s term.

Even compared to other terrorism sentences, Padilla’s has an arbitrary flavor. Terrorism defendants who merely attended Pakistan training camps have received sentences almost twice as long. (Criminal offenses pertaining to terrorism generally carry high sentences imposed pursuant to minimal evidence of wrongdoing). Looking at the Justice Dept.’s track record, one gleans little confidence that charging strategies are much more than arbitrary. If Ashcroft’s allegations against Padilla are true, his sentence is grossly low, while lesser offenders continue to be slammed in cases with a political point-scoring stench.

The result is a justice system that has yet to deliver even one conviction of a person implicated in the 9/11 conspiracy or tethered to a major follow-up effort. That is, not one person has been brought to justice for 9/11.

True, many terrorists have alleged been interdicted (often by dubious means). But this is not the same as justice or the appearance of justice. It provides no accounting of what happened, what crimes were committed, or why "bin Ladenism" is wrong. It establishes no benchmarks for the other nations, no restoration of the damage wrought by 9/11 to our idea of an orderly world. Most critically, it fails to provide any sense of the U.S. commitment to an alternative to lawless violence. There have been nothing like the Nuremberg War Crimes tribunals after World War II, which restored the equilibrium of moral life by arguing that what the Axis powers had done was beyond the pale.

This is not about rhetoric. Poll after poll attests to the resonance that Osama bin Laden’s message continues to have for many peoples around the globe. By not seeking justice, the U.S. government cannot respond persuasively by showing its commitment to the rule of law, let alone narrating the wretched and psychopathic villainy of al Qaeda itself.

The Justice Department has already indicated its intent to appeal Padilla’s sentence to the relatively conservative Court of Appeals for the 11th Circuit.

Even with a friendly appellate panel, though, prosecutors face an uphill battle: Late last year, the Supreme Court made it harder to challenge criminal sentences on the basis of trial court error. So one of the conservative Supreme Court most important criminal procedure changes may result in immunizing Padilla’s sentence from challenge.

Whatever the facts of his case -- whatever he did or did not do, -- Padilla is not the satisfying symbol of justice triumphant that both sides of the current debate claim. Rather, he is a symbol of the unfinished business of national security reform more than six years after 9/11 -- business that should be weighing heavily as the possibility of a new president again opens the door to reform.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced:Presidential Power in a Time of Terror." He has written for New York Law Journal, The Washington Post, The Huffington Post, The New Republic, The American Prospect and Democracy Journal.

California's Oily Justices

Suemedha Sood — Mon, 28 Jan 2008 20:47:50 GMT

Illustration by: Matt Mahurin

Former employee Braxton Berkley was one of hundreds to sue Lockheed Martin and other chemical supply companies—some of which are among the world’s largest oil companies—for injuries resulting from exposure to toxic chemicals. Berkley, who says the injuries resulted from his work on military planes, appealed his case to the California Supreme Court. But the case was dismissed.

Why? Four out of seven justices held stock in some of those oil companies, and therefore couldn’t rule on the case.

This NYTimes editorial sums it up best:

It’s a crazy — and unacceptable — way to run a court. The justices should be required to put their financial holdings in a blind trust. Instead, California requires judges to follow their investments so they can recuse themselves in cases where there is a conflict.