ACA Is A Law Of Social Change: Cue The Outrage

By Tina Dupuy, cross-posted from her website

We can all stop pretending continued Republican anger about the Affordable Care Act is news. Some figured a Supreme Court ruling would settle things. And since the GOP said it was unconstitutional with the same fervor as people who’ve read the Constitution—it was easy to assume a decision from the nine justices in the highest court in the land—regardless of the outcome—would chill them out.

They would say things like “We are a nation of laws.” Things they say when they agree with the law—however unjust it may be (i.e. immigration).

No instead there are calls for revolt. The perennially reasonable Senator Rand Paul (R-Kentucky) said in a written statement: “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.” And then added, “The whole thing remains unconstitutional.” Which is akin to saying just because something is a law doesn’t make it legal. Or just because they have hair on their face doesn’t make them mammals. The court, not some junior senator from a small state, ultimately decides what is or what is not constitutional. But unconstitutional is the word conservatives use for illegitimate. In chess this move is called flipping the board over and stomping away.

But it also feeds into the right-wing narrative that they are history’s most frequent victims. To them, the more egalitarian the country becomes the more persecuted conservatives are. The sentiment can be traced back to 1845 and the founding of the Know Nothings a nativist group concerned the country was being overrun with German and Irish immigrants. The current tea party finds its sympathies much more inline with the Know Nothings than anyone who ever threw tea in the Boston Harbor. They’re each backlash movements sparked by “change.”

The Know Nothings became split on the issue of slavery and in the southern states morphed into what we identify as the Confederacy. Here you have a region of the country that quite literally fired the first shots of what was to be the bloodiest war in American history and to hear them tell it, it was the “war of Northern aggression.”

The Civil War for many didn’t settle things so why would we assume a 5-4 decision could?

Conservatives are still mad about the New Deal, even though it worked to pull the country out of the Great Depression. They’re still miffed about women suffrage, the Civil Rights bill and Roe v. Wade. In fact any movement forward giving more people more rights and greater acceptance is a point of contention with conservatives. Gay rights is framed as Christians losing their rights to vilify whomever they want. Women not being forced to pay for birth control out-of-pocket is the government restricting the freedom of religion institutions to dictate policy to the government.

Conservatives in the current incarnation of the Republican Party think rights are a zero sum game. If one group gains acceptance, it means another falls out of favor. The cornerstone of trickle down economics is that a rising tide raises all boats—but not when it comes to social change in the right-wing mindset. Then there are winners and there are losers. And conservatives on some level have to lose to prove their preexisting condition: They’re not bullies but martyrs—always hanged in the public square for their belief that only they should benefit from the Bill of Rights.

The Affordable Care Act is a law of social change. It insists on greater equality for women in health care. It stands up for the sick over the bottom line. It’s a step forward for human rights (finally) in our medical system. And it mandates personal responsibility (as with most laws). It’s far from perfect, and as with anything it can stand improvement—but does that make it an affront to Republicans?

In a word: Yes.

It’s health care reform policy, Republicans, going all the way back to Nixon, have touted as a way to avoid socialized medicine in America. So naturally its implementation is a major loss for their team.

Now more Americans can get private medical insurance and insurance companies have to spend a higher percentage of premiums on actual health care—but most importantly conservatives get to be the victims of “a communist plot to kill our freedom.”

Hail To The Chief Justice?

DonkeyHotey

Let's not get carried away by the fact that Chief Justice Roberts voted with the so-called liberal-moderate block to uphold the Affordable Care Act.  Let's not forget, as Ethan Bronner of the New York Times writes, that "in the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism."

But with the reputation, perhaps legitimacy, of the Supreme Court at stake, Roberts decided to find a way to validate the Act.

As Steven Teles predicted, Roberts did not want "a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that."

Teles uses a baseball metaphor to demonstrate the difference between Roberts' approach and that of his fellow conservatives on the bench:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl. 

I'm not sure I buy Teles' overarching point (and that of others, such as Laurence Tribe) in the wake of this ruling that Roberts is not really a radical ideologue.  As Ed Kilgore observes, "Roberts exercised 'judicial restraint;' at the same time, however, he managed to deliver not only his 'brush-back pitch' but a nice, easy talking point about ACA relying on a 'tax.'"

And it is unrealistic to think that Roberts has magically undergone some kind of transformation.  As law professor Adam Winkler points out, the Roberts Court has hardly been known before today for its judicial restraint:

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Significantly, although Roberts agreed with the four conservative justices that the individual mandate was not a regulation of interstate commerce, he ultimately voted to uphold the constitutionality of the mandate by characterizing it as a tax.  While his vote saved the Act, Justice Ginsburg cautioned that Roberts' view comprised a "novel constraint on Congress’ commerce power." 

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

As Amy Davidson notes, “stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching. (See Professor Tobias Wolff's comments on the extraordinarily disruptive potential of Roberts' reasoning.)

But, as Winkler notes, "with this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."

Chief Justice Roberts undoubtedly had the Court's institutional legitimacy and his own reputation in mind when he voted to uphold the Affordable Care Act.  And, more disturbingly, as Winkler predicts:

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

It is therefore ridiculous to analyze Roberts' legacy based on this one ruling.  As Winkler concludes, "The Roberts Court has only just begun."

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.


In an ACS Issue Brief, Simon Lazarus blasted the arguments against health care reform as constituting a “bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as ‘Lochnerism,’ which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws.”

The Supreme Court’s opinion on the constitutionality of the health care law is coming sometime this month, unless the justices decide the case is not ready to be challenged.

During her featured remarks at the ACS 2012 Convention, Justice Ruth Bader Ginsburg touched upon the rampant media speculation surrounding the challenges to the health care reform law, the likelihood of more sharply divided opinions to come, and the impact of Supreme Court dissents.

In noting the challenges to the minimum coverage provision, Ginsburg said, “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

See video of Ginsburg’s remarks here.

Trust Me: You Believe In Gun Control

By Tina Dupuy, cross-posted from her website

If you ask the typical hyper-political gun owner (and I have … at Thanksgiving dinner), why it’s important to own a gun, they’ll bark about the Constitution. Yes, the Second Amendment: “The Right of the People to Keep and Bear Arms Shall Not Be Infringed!”

This of course is the slogan the National Rifle Association adopted in the 1970’s. It was then that owning a gun became an absolute right endowed by God and the Constitution. A blessing passed down by our forefathers to obliterate game and protect our property. The NRA was founded in 1870 and for its first hundred years it was for gun control and didn’t mention the Second Amendment as their cause.

Adam Winkler points out in his delicious book, “Gun Fight,” what we call the “wild west” had some of the strictest gun control laws we’ve seen as a nation. The shoot out at the OK Corral took place, after all, because Wyatt Earp was trying to disarm the outlaw Cowboys in accordance with a Tombstone ordinance. The KKK was among other things, a gun control organization. They were trying to keep guns out of the hands of newly freed slaves … but still gun control.

The part of the Second Amendment omitted from the NRA’s slogan is: “A well regulated Militia, being necessary to the security of a free State…” Yes, well regulated—it’s in the Constitution!
Now, to some, guns are as sacred as scripture. If you ask, again, this typical hyper-political gun owner why they need to stockpile assault rifles, you will get an answer much like Pat Flynn’s, a recent candidate for a Senate seat in Nebraska. “Really, we have our guns to protect ourselves against the government, number one,” Flynn said in a debate right before the primary. “Hunting’s number two. But protecting us against our government is number one.” Remember Flynn was trying to land a job in the government (he didn’t win his party’s nomination, by the way).

The idea is that we have to be just as armed as our government in order to be safer or have more liberty (or something). The U.S. government has unmanned drones armed with supersonic laser-guided anti-armor Hellfire missiles, “bunker busters,” and nuclear weapons. Are far-right politicians saying we need civilians to have shoulder-fired anti-aircraft missiles “for protection?” Of course they’re not. They actually do want limits on ownership.

And if you ask the most vehement gun rights advocate why Everyman Gun Owner shouldn’t have nuclear weapons, I’d bet you’d get the same answer as to why we don’t want every country to have the capability: “Because they could get into the wrong hands.”

So weapons-grade plutonium should be limited. But the ever-handy semi-auto Glock pistol with a 30-round high-capacity magazine is an absolute right?

A recent gun buyback drive in Los Angeles resulted in someone turning in a rocket launcher. Comforting.

So we’re not actually talking about limited vs. unlimited. We are talking about degrees of weapon ownership.

Guns fall into the wrong hands all the time. More guns and fewer requirements for ownership doesn’t curb this. George Zimmerman was the wrong hands. Zimmerman, a Florida man now infamous for shooting an unarmed black teenager at close range after a 911 operator told him not to engage the alleged suspect and wait for police to arrive, is now being defended by said hyper-political gun owners. There’s no reason a Neighborhood Watch captain should be patrolling his block with a criminal record and a pistol. Zimmerman was a catastrophe realized. Even in the wake of new evidence about this case, the fact remains if Zimmerman didn’t have a gun, 16-year-old Trayvon Martin would be alive.

The United States is number one in the world in civilian gun ownership. And since we’re not last in gun violence (we’re the 14^th highest in deaths—way higher in just injuries) it’s safe to assume that increasing the number of guns doesn’t decrease the number of gun deaths. Just like cutting taxes doesn’t increase revenue—making gun ownership unlimited doesn’t make us safer. It’s a lie. A fairy tale of the gun lobby. Completely unsupported by data or logic. A falsehood.

So unless you think all Americans should get Daisy Cutters this Christmas—you believe in regulations as to who gets a weapon, what kind and where they can have it.

Gun control laws are not tyranny—as the family of Trayvon Martin can testify to—a de-regulated militia is.

25 Years After McCleskey, Racial Bias Remains "An Inevitable Part Of Our Criminal Justice System"

Twenty-five years ago, the United States Supreme Court issued McCleskey v. Kemp, one of its more shameful decisions.  Despite overwhelming statistical evidence of systemic racial bias in Georgia's imposition of capital punishment, the Court upheld Warren McCleskey's death sentence.  It held that statistics proving a discriminatory effect were insufficient and that a showing of deliberate, purposeful discrimination -- a nearly impossible burden -- was required to establish a constitutional violation on equal protection grounds.  The majority 5-4 opinion, authored by Justice Powell, acknowledged that racial bias was "an inevitable part of our criminal justice system," but cynically concluded that if sentences stemming from such bias were tossed out it would call the entire system into question. 

I am not a fan of analogies to Nazi Germany, which in many ways was an incomparable horror.  But in the piece written below by my dear friend, the remarkable Denny LeBoeuf, the thought experiment she proposes is quite apt.  -- Lovechilde

If Germany Had The Death Penalty:  A Thought Experiment

By Denny LeBoeuf, cross-posted from the ACLU Blog of Rights

Imagine it's 1976. A high crime rate afflicts German cities, and the government reinstates the death penalty. "We'll have the strongest possible protections for people accused of capital crimes, providing them with free lawyers, right to experts, investigators, appeals to higher courts, and trial by a jury of their peers. This is not the Germany of the Nazi Party. We will never repeat those terrible errors."

Now imagine that 30 years later, statistical evidence shows that Jewish citizens disproportionately get the death penalty; crimes by Jews against Christians are more likely to be selected for a capital prosecution; Jews are routinely excluded from jury service. Further imagine that prosecutors defend all this by saying that Jews shouldn't sit on capital juries because they are mistrustful of German authorities, and that the German high court has ruled that statistical evidence of discrimination against Jews is inadmissible in a death penalty case.

You see where we're headed. My guess is that most people can't get past the second sentence of this thought experiment, let alone past the discrimination against Jews.

Bryan Stevenson, whose idea this is, asks this of America: "Do we deserve to have a death penalty?" If Germany does not — and they emphatically believe they do not — then why do we? Think the parallels are forced? Not accurate? Really?

Consider this: before the Civil War, crimes against Black people in the South were considered only as property crimes against their owners. The Supreme Court issued its Dred Scott decision in 1857, finding that Blacks have "no rights which the white man is bound to respect." Within a few years after the Civil War, the criminal justice system became an engine to produce bodies — Black bodies — to work in the same agricultural fields they had tended as slaves, and in the burgeoning industries of the post-Reconstruction South.



Doug Blackmon's Pulitzer-winning book, Slavery by Another Name, carefully documents the re-enslavement of Black Americans after the Civil War — by a re-tooled criminal justice system that charged, convicted and sentenced freed slaves and their children, grandchildren and great-grandchildren based on the need for free convict labor — not on guilt, innocence, culpability or fair procedures.

Meanwhile, as Black people were being targeted by the criminal justice system for undeserved punishment, the very same system was protecting the vigilante members of white supremacist domestic terrorist groups like the KKK and the Knights of the White Camellia, who were allowed to commit murder, arson and property theft in the open, without fear of arrest or prosecution.

So if a criminal justice system functions to protect white criminals (the Klan) and convict Black workers (for convict labor) with little or no regard for innocence or guilt, what is the one thing that system cannot accommodate? The equal participation in the system of Black people. That means no Black people on juries — by law for many years and by unlawful and unconstitutional discrimination after that. It also means shutting out statistical evidence of discrimination, no matter how explosive, careful and well-documented, that would prove the system — up to and including the sentencing of a person to death — is tainted by race discrimination. That's according to McCleskey, decided by the U.S. Supreme Court 25 years ago.

As a part of a coalition of capital defense attorneys, earlier this year ACLU Capital Punishment Project attorney Cassandra Stubbs participated in the first-ever hearing under North Carolina's Racial Justice Act, which aims to reverse the harm of McCleskey by allowing capital defendants to introduce statistical evidence showing race is a factor in the administration of the death penalty.
The lawyers are challenging the death sentence of Marcus Robinson, a Black defendant convicted for the death of a white person, who was sentenced to death by a jury tainted by a racially biased jury selection process.

Faced with overwhelming proof that Black people are continually excluded from death penalty juries in North Carolina, the prosecutors in Robinson's case argued, essentially, that Black people tend not to trust the criminal justice system, and don't believe in the death penalty as much.

Now back to the thought experiment. Prosecutors in North Carolina argue that Black people, who have been deliberately excluded from and discriminated against by America's criminal justice system since the Civil War, are less likely to trust that system, and therefore it's okay to continue to exclude them from participating in it. Now let's answer Bryan Stevenson's question: Does the United States deserve to have the death penalty?

Ozzie Guillen's Pro-Castro Speech Is Not Free

Peter Angelos, Fidel Castro and Bud Selig at the ball park

Ozzie Guillen, the manager of the Miami Marlins, was suspended for five games without pay for having the audacity to tell a Time Magazine reporter that he admired and respected Fidel Castro.  This is not a popular sentiment in this country and was guaranteed to offend many Cuban-Americans who live in Miami.  Guillen, an American citizen, originally from Venezuela, has since apologized profusely and attempted to clarify his remarks. 

Baseball Commissioner Bud Selig felt compelled to add his two cents, expressing support for the suspension and asserting that "Guillen's remarks, which were offensive to an important part of the Miami community and others throughout the world, have no place in our game."

This is not a First Amendment issue.  The First Amendment prohibits the government -- not businesses -- from interfering with free speech.  Nevertheless, it does seem rather remarkable that Guillen is being punished for merely expressing an unpopular opinion.  (Guillen didn't say anything about supporting Castro's policies but only that he respected him because "a lot of people have wanted to kill Fidel Castro for the last 60 years, but that son of a b—— is still here.”)

Such treatment is particularly ironic, as Matthew Rothschild points out, given "that critics of Castro stress Fidel’s own intolerance of dissent."  And even more ironic given that Commissioner Bud Selig, along with Orioles owner Peter Angelos, went to a game with Castro, when the Orioles played in Cuba in 1999.   

It remains to be seen whether the five-day suspension will be enough to assuage the Marlin fans, many of whom are calling for Guillen's resignation.  The New York Times aptly concludes in its editorial that "the Marlins may legally, be within their legal rights, but they should have thought harder before succumbing to the cries of a mob and punishing a political statement for business reasons."

Amazingly, as Rothschild states, more than five decades since Castro took power, "red-baiting is still a dangerous sport in America."  Or at least in South Florida.

Bend Over America: SCOTUS OK's Strip Searches

DonkeyHotey

Albert Florence was in the passenger seat of his BMW when a state trooper pulled his wife over for speeding. A records search revealed, incorrectly as it turned out, that he had an outstanding warrant based on an unpaid fine.  Mr. Florence was handcuffed and taken into custody.  Florence was held for a week at two separate New Jersey county jails, and strip-searched at each one.

(In a podcast produced by the American Constitution Society and the National Constitution Center, Florence tells the story of his arrest in front of his pregnant wife and four-year-old son, and his subsequent treatment at the two detention facilities.)

An outrageous affront to human dignity, right?  An obvious violation of personal privacy?  With jails admitting more than 13 million inmates a year, are we really going to sanction strip searches for even the most minor offenses?

Yesterday, in a -- say it with me -- "5-4 decision," the United States Supreme Court held that corrections officials may strip search people who are arrested for all offenses, including those not involving drugs or violence, and without any suspicion that they may be hiding contraband.

Justice Kennedy, who wrote the majority opinion, was loathe to "second-guess the judgments of correctional officials," while Justice Breyer wrote in dissent that "there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something."

Breyer also took note of a number of other instances documented in amicus briefs submitted in the case in which "individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search”:

They include women who were strip-searched during periods of lactation or menstruation. They include victims of sexual violence. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.

The ACLU warned that the decision "jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses."  ACLU legal director, Steven R. Shapiro, stated:

Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion. Jail security is important, but it does not require routinely strip searching everyone who is arrested for any reason, including traffic violations, and who may be in jail for only a few hours. 

Amy Davidson writes about the cluelessness of Justice Kennedy and his Gang of Five ("What does the Supreme Court know about naked bodies? What is more important, according to a five-four decision Monday, is what the Justices think a law-enforcement officer might learn from strip-searching anyone who has been taken into their custody for any reason at all.")

Davidson makes another great point:  "If jails are such a dangerous morass, the sort of place one can’t enter without a squatting ritual, why are we sending so many millions there, and for what?"

The Supreme Court Trauma Center

By DonkeyHotey

Targeted Killings And The Death Of Due Process

Attorney General Eric Holder's speech on Monday sought to explain and justify our government's policy of secretly targeting American citizens for assassination:

Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.

 Charlie Savage wrote in The New York Times that "it was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances."   Notable indeed.

Holder rejected the notion that "the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces.”  He contended that "'due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security."  According to Holder, "the Constitution guarantees due process, not judicial process.”

I better go polish off my old law books because I sure don't remember that distinction when I was in law school.  How can Holder seriously argue that a citizen of this country can be killed as long as the government thinks he or she is a threat and the President gives approval in secrecy -- without charging them with a crime, notifying them of the government's case or providing any opportunity to defend themselves?

Eric Holder says, "this is an indicator of our times, not a departure from our laws and our values."  I agree instead with Charles Pierce, who says, this "is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. This policy is a vast departure from our laws and an interplanetary probe away from our values."

The ACLU, which has doggedly but unsuccessfully, so far, attempted to get information about the targeted killing program from the Justice Department and CIA through a Freedom of Information Act lawsuit (click here for petition urging release of secret memos), had this to say about Holder's speech:

While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.  Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.

With all the deserved condemnation heaped on the Bush Administration for its expansion of Executive branch powers in the service of the War on Terror, its warrantless wiretapping and extraordinary rendition, it is striking how muted the criticism is of Obama.  As Glenn Greenwald writes:

How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers?"

It is hard to disagree with Greenwald's assessment "that the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time."

And, as the ACLU points out, "anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power."

What would President Romney do?

The War On Contraception

Conservatives Claim "Religious Freedom" Means Freedom to Impose Religion on Workers

By Bill Scher, cross-posted from Campaign for America's Future

It was just one month ago when conservatives were complaining that ABC's George Stephanopoulos was displaying his "bias" while moderating a Republican presidential debate by being "obsessed" with contraception and asking Mitt Romney a "gotcha question" about whether the Constitution has a right to privacy that extends to obtaining contraception.

Last month, Romney handled the question by saying "Contraception—it's working just fine. Just leave it alone."

But now, after conservatives began obsessing over the Obama administration's decision requiring insurance companies to include contraception in the preventative services covered for free under the Affordable Care Act, Romney has become a little obsessed himself, falsely claiming, "President Obama orders religious organizations to violate their conscience."

The obsession has now reached the Speaker of the House, who declared today that if the President doesn't "reverse" this "attack on religious freedom," then "Congress must."

Like most obsessions, this one makes no sense.

How is a rule, based on the law that Congress passed, providing coverage for a service that literally more than 99% of women use, somehow a blunt attack on religion?

How is a rule that is already the law in 28 states—without much of a peep from conservatives including Mitt Romney who was governor of one of those states—suddenly wreaking secular fascism across the nation?

How is a rule that makes eight states expand the exemption for religious institutions, take away freedom from religious institutions?

Most importantly, how is a rule that explicitly exempts "religious employers" a violation of the separation of church and state?


The rule defines "religious employers" as any non-profit that "has the inculcation of religious values as its purpose," "primarily employs persons who share its religious tenets," and "primarily serves persons who share its religious tenets."

This is the real issue that certain nonprofits and businesses are upset about. Some conservatives and Catholic leaders want the "religious employers" definition to be a giant loophole.

Some schools, hospital, charities and other businesses that are run by Catholics, if they provide health insurance (they still have the "freedom" not to, though starting in 2014, employers with 50 or more employees will pay a fee if they don't), will now be providing health insurance that covers contraception.

Catholics running such businesses will still have their religious freedom to live their lives as they see fit.

What they will lose is the ability to impose their religious beliefs on their employees, and deny them the equal access to contraception—which, again, nearly everybody uses.

And what might happen if those employees lose their freedom to access contraception?

More unwanted pregnancies. More abortions. More infant mortality. More health problems for expectant mothers.

As anyone who uses contraception knows—which, again, is nearly everybody—contraception is expensive. If your freedom-loving employer doesn't pay you very much, you won't have the freedom to buy contraception consistently, and that pretty much defeats the purpose.

The Obama administration rule respects the constitutional separation of church and state, ensuring that our government does not give dictates to any church. And it also respects the constitutional right to privacy, ensuring that our secular employers cannot impose their personal religious beliefs on their employees.

What conservatives cannot stand is seeing the Constitution in action, stifling their obsession with imposing their beliefs on the rest of us and making us less healthy.

The reality is: contraception is working just fine. And so is the Constitution.

Civil Rights Groups Urge Supreme Court To Prohibit Housing Policies That Have Discriminatory Impact

By Keith Kamisugi, cross-posted from Equal Justice Society's website

Several of the nation’s leading civil rights organizations filed amicus briefs this week urging the U.S. Supreme Court to rule in Magner v. Gallagher that the federal Fair Housing Act can be enforced when a seemingly neutral housing policy results in discrimination.

The Opportunity Agenda joined AARP, ACLU, The Lawyers’ Committee For Civil Rights Under Law and the NAACP Legal Defense & Educational Fund in filing briefs with the court. (The Equal Justice Society signed on to the Opportunity Agenda brief.) Twelve state attorneys general also filed briefs in favor of fair housing law enforcement.

The Supreme Court will hear arguments in this case on February 29.

What’s at stake in Magner is the obligation of cities and towns to protect equal opportunity in housing. That responsibility includes avoiding unnecessary policies that discriminate in practice, as well as those that are intentionally discriminatory.

For more than 40 years, our courts have said that the Fair Housing Act prohibits both old school bigotry in housing, and policies that have the unnecessary effect of excluding qualified people based on their race, disability, or other factors. In Magner, the Supreme Court will be deciding whether that longstanding, commonsense interpretation will continue, or whether only intentional discrimination can ever violate the Fair Housing Act.

The plaintiffs in the case are building owners in St. Paul, Minn., who rent their properties to working class people, including many African Americans. They say that the city is trying to push them and other rental owners out of town, in favor of owner-occupied housing, with the practical effect of excluding many African Americans from any housing in the city. According to the property owners, the city is using excessive and often false code enforcement against these owners, but leaving alone owners who live in their homes.

The plaintiffs challenged the City of St. Paul’s policy in federal court under the Fair Housing Act. The Act, part of the Civil Rights Act of 1968, prohibits discrimination in the sale, rental, and financing of dwellings, based on race, color, national origin, religion, sex, familial status and disability.

Passage of the Fair Housing Act was not easy. From 1966 to 1967, Congress was unable to garner a strong enough majority for its passage. The Rev. Dr. Martin Luther King, Jr. was closely associated with the fair housing legislation since the 1966 open housing marches in Chicago. When Dr. King was assassinated on April 4, 1968, President Johnson urged Congress to pass the fair housing act as a tribute to Dr. King.

During this same time period, the deaths of our soldiers in Vietnam fell heaviest upon young, poor African Americans and Hispanics. The families of these soldiers could not purchase or rent homes in certain residential developments on account of their race or national origin. Senators Edward Brooke and Edward Kennedy of Massachusetts argued strongly for the passage of this legislation. In particular, Senator Brooke, the first African American ever to be elected to the Senate by popular vote, spoke personally of his return from World War II and his inability to provide a home of his choice for his new family because of his race.

Despite the progress we’ve made as a nation more than four decades after passage of the Fair Housing Act, significant obstacles to equal opportunity still exist, particularly when it comes to housing and homeownership. There are still some real estate agents, landlords, and others who practice intentional discrimination against people of color, families with children, people with disabilities, and other Americans.

But more often these days, local governments and real estate corporations engage in unjustified and unnecessary practices with the practical effect of discriminating against well-qualified Americans. Some cities and towns, for example, prohibit the building of smaller homes or apartments that working people could afford, which in many places excludes most people of color. That means certain Americans are unfairly and unnecessarily cut off from opportunities like quality schools, jobs, and business possibilities.

That’s bad for all of us, and the Supreme Court should reaffirm that the law forbids it by ruling in favor of the plaintiffs in Magner.

Unfair And Unconscionable: The Capital Jurisprudence Of Antonin Scalia

By Jeff Gamso, cross-posted from his blog, Gamso - For the Defense

Paul Szep

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation.

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of "an orderly system of criminal litigation conducted by counsel."  The republic would survive, but our whole system of criminal justice would collapse.  (Which he might think would destroy the republic, but he doesn't say that.)

So fairness be damned.

The case is Maples v. Thomas, and I've written about it before.   It's the sad saga of Cory Maples.  He's on death row in Alabama.  He got Sullivan & Cromwell, a fancy-ass, white-shoe, big-shot law firm in New York to represent him in state post-conviction proceedings because Alabama can't be bothered actually paying lawyers to do that sort of work.  But S & C dropped the ball.  Horribly.  Inexcusably.  Their lawyers abandoned Cory without telling him.  Alabama sent word to the lawyers that Cory had lost a round of his case which started a clock by which he had to appeal.  S & C returned the letters unopened because the lawyers who'd been working on Cory's case left the firm.  And then Alabama did nothing.  Until the deadline passed.

And SCOTUS today, in an opinion that really does nothing much to break any legal ground but really is no more than a correction of a monstrous and self-evident wrong, by a vote of 7-2, said to give Cory a chance.  Because, after all (although they didn't say this), the alternative is unfair.

Which left Nino to stammer and threaten the end of criminal law (if not the republic).

There's nothing much new in any of this.  On those occasions when 5 members of the High Court are sufficiently appalled by what the system did to the convicted guy, he wins.  Because it's only fair.

On those occasions when 5 members of the High Court are more appalled by the crime than by the unfairness of what was done to the convicted guy, he loses.

Well, 5 members of the Court who don't understand that a fair system means anarchy, criminals running rampant through the streets. 

Bar the gates.

Hide the silverware.  

Lock up the women and children.

A year and a half ago, it was Holland v. Florida.  Then, too, the poor guy's lawyer had, effectively, abandoned him.  If it's sufficiently gross abandonment, said a 7-2 majority of the Court, not just garden variety negligence, but negligence with cooties, he gets a chance to be heard.

Scalia would have none of it.  The problem he identified then wasn't that the republic (or at least the system of criminal law) would crumble if we tried to make it fair.  The danger then wasn't fairness.  It was conscience.  Judges, he said, might have a conscience.  But its dangerous and must be tamped down.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. 

So fairness is out.  Conscience is out.  What's left?

Oh, yeah.

Let them eat cake.

Jeff Gamso is a criminal defense lawyer, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker. 

Armed With Naïvete

Time to Stop Being Cynical About Corporate Money in Politics and Start Being Angry

By Bill McKibben, cross-posted from Tom Dispatch

My resolution for 2012 is to be naïve -- dangerously naïve.

I’m aware that the usual recipe for political effectiveness is just the opposite: to be cynical, calculating, an insider. But if you think, as I do, that we need deep change in this country, then cynicism is a sucker’s bet. Try as hard as you can, you’re never going to be as cynical as the corporations and the harem of politicians they pay for.  It’s like trying to outchant a Buddhist monastery.

Here’s my case in point, one of a thousand stories people working for social change could tell: All last fall, most of the environmental movement, including 350.org, the group I helped found, waged a fight against the planned Keystone XL pipeline that would bring some of the dirtiest energy on the planet from Canada through the U.S. to the Gulf Coast. We waged our struggle against building it out in the open, presenting scientific argument, holding demonstrations, and attending hearings.  We sent 1,253 people to jail in the largest civil disobedience action in a generation.  Meanwhile, more than half a million Americans offered public comments against the pipeline, the most on any energy project in the nation’s history.

And what do you know? We won a small victory in November, when President Obama agreed that, before he could give the project a thumbs-up or -down, it needed another year of careful review.  (The previous version of that review, as overseen by the State Department, had been little short of a crony capitalist farce.)  Given that James Hansen, the government’s premier climate scientist, had said that tapping Canada’s tar sands for that pipeline would, in the end, essentially mean “game over for the climate,” that seemed an eminently reasonable course to follow, even if it was also eminently political.

A few weeks later, however, Congress decided it wanted to take up the question. In the process, the issue went from out in the open to behind closed doors in money-filled rooms.  Within days, and after only a couple of hours of hearings that barely mentioned the key scientific questions or the dangers involved, the House of Representatives voted 234-194 to force a quicker review of the pipeline.  Later, the House attached its demand to the must-pass payroll tax cut.

That was an obvious pre-election year attempt to put the president on the spot. Environmentalists are at least hopeful that the White House will now reject the permit.  After all, its communications director said that the rider, by hurrying the decision, “virtually guarantees that the pipeline will not be approved.”

As important as the vote total in the House, however, was another number: within minutes of the vote, Oil Change International had calculated that the 234 Congressional representatives who voted aye had received $42 million in campaign contributions from the fossil-fuel industry; the 193 nays, $8 million.

Buying Congress

I know that cynics -- call them realists, if you prefer -- will be completely unsurprised by that. Which is precisely the problem.

We’ve reached the point where we’re unfazed by things that should shake us to the core. So, just for a moment, be naïve and consider what really happened in that vote: the people’s representatives who happen to have taken the bulk of the money from those energy companies promptly voted on behalf of their interests.

They weren’t weighing science or the national interest; they weren’t balancing present benefits against future costs.  Instead of doing the work of legislators, that is, they were acting like employees. Forget the idea that they’re public servants; the truth is that, in every way that matters, they work for Exxon and its kin. They should, by rights, wear logos on their lapels like NASCAR drivers.
If you find this too harsh, think about how obligated you feel when someone gives you something. Did you get a Christmas present last month from someone you hadn’t remembered to buy one for? Are you going to send them an extra-special one next year?

And that’s for a pair of socks. Speaker of the House John Boehner, who insisted that the Keystone approval decision be speeded up, has gotten $1,111,080 from the fossil-fuel industry during his tenure. His Senate counterpart Mitch McConnell, who shepherded the bill through his chamber, has raked in $1,277,208 in the course of his tenure in Washington.

If someone had helped your career to the tune of a million dollars, wouldn’t you feel in their debt? I would. I get somewhat less than that from my employer, Middlebury College, and yet I bleed Panther blue.  Don’t ask me to compare my school with, say, Dartmouth unless you want a biased answer, because that’s what you’ll get.  Which is fine -- I am an employee.

But you’d be a fool to let me referee the homecoming football game. In fact, in any other walk of life we wouldn’t think twice before concluding that paying off the referees is wrong. If the Patriots make the Super Bowl, everyone in America would be outraged to see owner Robert Kraft trot out to midfield before the game and hand a $1,000 bill to each of the linesmen and field judges.

If he did it secretly, the newspaper reporter who uncovered the scandal would win a Pulitzer. But a political reporter who bothered to point out Boehner’s and McConnell’s payoffs would be upbraided by her editor for simpleminded journalism.  That’s how the game is played and we’ve all bought into it, even if only to sputter in hopeless outrage.

Far from showing any shame, the big players boast about it: the U.S. Chamber of Commerce, front outfit for a consortium of corporations, has bragged on its website about outspending everyone in Washington, which is easy to do when Chevron, Goldman Sachs, and News Corp are writing you seven-figure checks. This really matters.  The Chamber of Commerce spent more money on the 2010 elections than the Republican and Democratic National Committees combined, and 94% of those dollars went to climate-change deniers.  That helps explain why the House voted last year to say that global warming isn’t real.

It also explains why “our” representatives vote, year in and year out, for billions of dollars worth of subsidies for fossil-fuel companies. If there was ever an industry that didn’t need subsidies, it would be this one: they make more money each year than any enterprise in the history of money. Not only that, but we’ve known how to burn coal for 300 years and oil for 200.

Those subsidies are simply payoffs. Companies give small gifts to legislators, and in return get large ones back, and we’re the ones who are actually paying.

Whose Money?  Whose Washington?

I don’t want to be hopelessly naïve. I want to be hopefully naïve. It would be relatively easy to change this: you could provide public financing for campaigns instead of letting corporations pay. It’s the equivalent of having the National Football League hire referees instead of asking the teams to provide them.

Public financing of campaigns would cost a little money, but endlessly less than paying for the presents these guys give their masters. And it would let you watch what was happening in Washington without feeling as disgusted.  Even legislators, once they got the hang of it, might enjoy neither raising money nor having to pretend it doesn’t affect them.

To make this happen, however, we may have to change the Constitution, as we’ve done 27 times before. This time, we’d need to specify that corporations aren’t people, that money isn’t speech, and that it doesn’t abridge the First Amendment to tell people they can’t spend whatever they want getting elected. Winning a change like that would require hard political organizing, since big banks and big oil companies and big drug-makers will surely rally to protect their privilege.

Still, there’s a chance.  The Occupy movement opened the door to this sort of change by reminding us all that the system is rigged, that its outcomes are unfair, that there’s reason to think people from across the political spectrum are tired of what we’ve got, and that getting angry and acting on that anger in the political arena is what being a citizen is all about.

It’s fertile ground for action.  After all, Congress’s approval rating is now at 9%, which is another way of saying that everyone who’s not a lobbyist hates them and what they’re doing. The big boys are, of course, counting on us simmering down; they’re counting on us being cynical, on figuring there’s no hope or benefit in fighting city hall. But if we’re naïve enough to demand a country more like the one we were promised in high school civics class, then we have a shot.

A good time to take an initial stand comes later this month, when rallies outside every federal courthouse will mark the second anniversary of the Citizens United decision. That’s the one where the Supreme Court ruled that corporations had the right to spend whatever they wanted on campaigns.

To me, that decision was, in essence, corporate America saying, “We’re not going to bother pretending any more. This country belongs to us.”

We need to say, loud and clear: “Sorry. Time to give it back.”

Bill McKibben is Schumann Distinguished Scholar at Middlebury College, founder of the global climate campaign 350.org, a TomDispatch regular, and the author, most recently, of Eaarth: Making a Life on a Tough New Planet. 

Last Call For Obama To Veto The NDAA

By Nicole Flatow, cross-posted from American Constitution Society

Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

“It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

It creates a presumption in favor of indefinite military detention for foreign al-Qaeda suspects, even if a criminal arrest and prosecution would be the preferred course. And it imposes this presumption even for foreigners caught within the United States. While the law permits the president to waive that, the presumption is still wrong: given its inconsistency with basic principles of due process, indefinite military custody should be the last, not the first resort.

Equally problematic, the law puts Congress’s stamp on a dubious—and untested—interpretation of military detention authority. The law provides that indefinite detention without charge may be imposed on anyone who has provided “substantial support” to groups that are “associated forces” of al-Qaeda; but it leaves undefined what constitutes “substantial support” and which groups might qualify as “associated forces.” Thus far, the lower federal courts have upheld detention of al-Qaeda or Taliban members, but not mere supporters, much less supporters of associated forces. And there is much dispute about whether the laws of war permit detention in those circumstances. Now Congress has essentially predetermined that question. Unless this and future administrations construe these provisions as limited by the laws of war, they risk authorizing detention that the laws of war would not.

Most disturbingly, the law still effectively prevents President Obama from closing Guantanamo. He can’t use any funds to build or modify a facility in the United States to house Guantanamo detainees—a necessary precondition to closing the prison. He cannot transfer any Guantanamo detainee to the United States, even to face criminal trial. And he cannot release any detainee to another country without meeting onerous certification requirements regarding that country’s security measures that, until now, have proven impossible to meet. (To its credit, the administration did get the conference committee to water down the certification requirements somewhat, but it still seems unlikely that they will be met.)

From Nixon To Newt: Why We Must Honor The Rule Of Law

"When the president does it, that means it is not illegal."  -- Richard Nixon

DonkeyHotey

When President Ford pardoned Richard Nixon for "all offenses against the United States," he stated that it was out of concern for the "immediate future of this great country."  He should have considered the longer term.  We may have been spared short-term trauma, but Ford's pardon guaranteed that future high government officials would feel unconstrained by the checks and balances of the other branches of government.

Next came Iran-Contra. While the Republicans stacked the joint legislative committee undertaking the investigation with the conservative wing of their party (e.g., then-Representative Cheney), the Democrats relied mostly on moderates, and thus the committee members were skewed toward those who were disinclined to probe very vigorously.  By rashly granting immunity to key witnesses such as Ollie North, the committee undermined prosecutions by an independent counsel.  The Iran-Contra Affair culminated in the pardon by first President Bush of several participants who had been implicated.  The lesson that the president and his circle had nothing to fear from overriding the will of Congress was reaffirmed.

President Obama has refused to seek any meaningful investigation of his predecessor's "War on Terror," despite substantial evidence --indeed, admissions -- that wiretapping laws were broken and torture was authorized at the highest levels.  Much like President Ford, Obama claimed that “nothing will be gained by spending our time and energy laying blame for the past.”  Thus, once again a clear signal was provided to future presidents that there would be no consequences for abuse of power.

President Obama maintains that he is committed to the rule of law and won't authorize torture.  And as he is about to sign a defense spending bill that will authorize the President of the United States to order indefinite detention of suspect terrorists without charges or court hearing, we are supposed to feel assured that Obama won't wantonly abuse this power.  But even assuming, without conceding, that Barack Obama is scrupulous in his respect for civil liberties and human rights, what is to stop the next president? 

Newt Gingrich has such disdain for the rule of law and the separation of powers that, as president, he would refuse to follow Supreme Court rulings he believed were incorrectly decided.  He rejects the long-standing principle of judicial review by which the Supreme Court is the final arbiter of whether legislation or executive branch actions are constitutional.  He believes it would be proper for Congress to subpoena federal judges, and he would be willing to abolish federal courts if they issued rulings with which he disagrees.

The Supreme Court's 2008 decision that the Bush Administration exceeded its constitutional authority in handling suspected terrorist detainees at Guantanamo would have been rejected by Gingrich if he were president:  “A commander in chief could simply issue instructions to ignore it, and say it’s null and void and I do not accept it because it infringes on my duties as commander in chief to protect the country." 

Gingrich's views on the powers of the presidency, whether you call them radical or simply bat-shit crazy, provide us with a jarring reminder of why a true reckoning of a prior administration's misdeeds is so essential and why enshrining into law provisions on indefinite detention which provide even greater discretion to the executive branch is so troubling.

The Trial Of Bradley Manning: Intimidation, Retaliation, Retribution

By Ann Wright, cross-posted from WarIsACrime.org (formerly AfterDowningStreet)

Yesterday, December 16, 2011, 40 supporters of Bradley Manning saw him in person in the military courtroom at Fort Meade, Maryland and another 60 saw him on a video feed from the court, the first time Manning has been seen by the public in 19 months.  Over 100 other supporters, including 50 from Occupy Wall Street who had bused down from New York City, were at the front gates of Fort Meade in solidarity with Manning.

Hundreds of supporters will gather today, Saturday, December 17, for a large rally and march.
For his first court appearance, Bradley was in what looked to be a new military uniform and typically military, he had a fresh haircut.  He was not in shackles in the courtroom, but it appeared in a photo that he was shackled in the van that brought him to the court. Manning talked freely with his civilian defense counsel and his two military legal counsels.

He did not turn around and look at the people in the court, but as he was brought in and taken out during the various recesses of the court, he no doubt noticed supporters in Bradley Manning t-shirts.
Bradley Manning has been imprisoned for 19 months, since May, 2010, without a trial.  Yesterday, December 16, 2011, an Article 32 hearing began at Fort Meade, Maryland, in which an investigating officer will determine whether there is sufficient evidence of the crimes with which the military has charged him for the case to be referred to a General court-martial.

In July, 2010, Manning was charged with transferring classified information onto his personal computer and communicating national defense information to an unauthorized source.  22 more crimes were charged in March 2011, including "aiding the enemy," a capital offense.  Defense Department prosecutors said they would not seek the death penalty. In April, 2011, Manning was found fit to face a court martial.


Defense Challenges Impartiality of Investigating Officer

On Friday, December 16, Manning’s civilian lawyer, David Coombs challenged the impartiality of the investigating officer US Army Reserve Lieutenant Colonel Paul Almanza, citing Almanza’s civilian employment as a lawyer in the Department of Justice which has conducted investigations on Manning, Julian Assange, and Wikileaks. The defense team had requested that 38 witnesses be allowed to testify in the Article 32 hearing. Coombs also said that the decision of Almanza to allow only two defense witnesses other than the10 the prosecution wanted demonstrated a bias by Almanza.

Coombs told Almanza,  “That simple fact alone, without anything else, would cause a reasonable person to say, ‘I question your impartiality.’ ” Stating that his office of child exploitation in the Department of Justice had nothing to do with the Wikileaks investigation or with national security issues, Almanza denied Coombs’ request for recusal.

Almanza told Coombs and Manning, “I do not believe a reasonable person, knowing all the circumstances, would be led to the conclusion that my impartiality would be reasonably questioned.  I thus deny the defense request to recuse myself.”

After that, Coombs filed a writ with the Army Court of Criminal Appeals to stay the proceedings until a decision can be made on whether Almanza should continue to preside. According to military law experts, the hearing can proceed while the appeals court makes its determination.

Manning under harsh imprisonment at Quantico reeked of intimidation and retaliation

The military’s treatment of Manning has reeked of intimidation and retaliation.

Until citizen activist protests six months ago in March, 2011, brought sufficient attention to the harsh conditions of his pre-trial confinement, the US military was treating  him as if he were beyond the scrutiny of the law — as if he were an "enemy combatant" in Guantanamo or Abu Ghraib.  Amnesty International and the United Nations Special Rapporteur on Torture expressed great concern about the conditions under which Manning was being held — in a maximum-security, single-occupancy cell, placed on a prevention-of-injury order and allowed to wear only a suicide-proof smock at night.

Independent UN expert on torture calls for unrestricted access to Manning and other US detainees 

On July 12, 2011, Juan Mendez, the United Nations Special Rapporteur on Torture, stated that it was "vital for him to have unmonitored access to Bradley Manning." Mendez said,

"I am assured by the US Government that Mr. Manning's prison regime and confinement is markedly better than it was when he was in Quantico, however, in addition to obtaining firsthand information on my own about his new conditions of confinement, I need to ascertain whether the conditions he was subjected to for several months in Quantico amounted to torture or cruel, inhuman or degrading treatment or punishment. For that, it is imperative that I talk to Mr. Manning under conditions where I can be assured that he is being absolutely candid."

At the request of Mr. Mendez and after several meetings, the US Department of Defense said it would allow him to visit Mr. Manning, but warned that the conversation would be monitored.

Mendez said such a condition violated long-standing rules that the UN applies for prison visits and for interviews with inmates everywhere in the world. On humanitarian grounds and under protest, Mr. Mendez, through Mr. Manning's counsel, offered to visit him under these restrictive conditions, an offer Manning declined.

Mr. Mendez said, "The question of my unfettered access to a detainee goes beyond my request to meet with Mr. Manning -- it touches on whether I will be able to conduct private and unmonitored interviews with detainees if I were to conduct a country visit to the United States."

Additionally, Mr. Mendez has requested several times since his appointment in November, 2010, that the US Government allow him to visit the US military prison at Guantanamo Bay, Cuba. However, the US government has not responded to his requests.

Best Military Legal System in the World?

Despite the military’s mantra of having the best military legal system in the world, the past treatment of Manning—keeping him in solitary confinement, forcing him to stand naked while in pre-trial confinement and the lack of compliance with the norms of the military legal system of a "speedy" trial have added to the low points of Abu Gharib and Guantanamo in the history of military “justice.”
The federal courts have long established mechanism of dealing with classified information in national security cases.

The military’s contention that it took 19 months to figure out how to try him while protecting classified materials reeks of intimidation, retribution and retaliation. 

Ann Wright is a retired US Army Reserve Colonel and a former US diplomat who resigned in 2003 in opposition to the Iraq war.  She is a member of Veterans for Peace and is on the Advisory Board of the Bradley Manning Support Network