Friday, December 05, 2008

The Auto "Bailout" Debate Is Prologue To What Obama Faces In The Next Congress

The Detroit auto company "bailout" is the beginning of the debate Obama will be facing in the next Congress. We are in a recession and possibly heading to a depression. The questions we face now, and in the coming months, revolve around what, if anything, the Federal government should do in response to this economic crisis.

The battle lines involve some familiar themes. Should the Government spend money? If so should it be through Republican favored tax cuts, for both wealthy individuals and corporations, or should the pump be primed directly with spending on projects and programs that create or preserve employment? Second, should the government actions promote well paying jobs, including unionized jobs, or should we go for the cheapest labor possible, with the secret hope of busting the union movement? Lastly, do we want to help people in this time of crisis or fiddle around enough so that the economy continues to slide with the hope of regaining lost seats in the next election and in the 2012 Presidential race?

These issues are at the core of the current debate and will be front and center when President Obama proposes new spending on Infrastructure, health care, and other priorities and revisions to the existing tax policies that favor wealth, capital, and the wealthy.

I don't carry any brief for Ford, Chrysler and GM. Many of their past actions have created the vulnerabilities they now face. But they are charting a new course. More importantly, they are an integral part of our manufacturing base. One can argue the outcome of one or more going into Chapter 11 bankruptcy. But these things are inarguable. The union contracts will be gone and with them the hope for revitalizing the union movement. That will be the sweetest victory long hoped worked for by Republicans for decades. More importantly, it will accelerate the race to the bottom for all wage earners in our country. Make no mistake, this is a source of the major divide in the current debate. And when the infrastructure debate occurs next year there will be a big push for the projects not to be built with people in unions or earning union prevailing wages.

I need to digress a little by mentioning two points. Labor costs are not the issue. The companies and the UAW agree that labor costs represent only about 10% of the cost of a new car. That said, the average UAW wage is not $70. It is about $30 and is only about $5 higher than the wages paid by foreign transplants. The real differences are these. UAW health coverage is better than in the transplants and union retirees are not thrown onto the national trash heap in their old age. Those things do cost more money and are built into the cost structure of the big three. But consider the alternative. If bankruptcy occurs and the pension obligations are dissolve, the Pension Benefit Guarantee Corporation will have to pick them up. PBGC payments are lower and since it is currently underfunded, taxpayers will end up having to cough up more money.

The second point relates to Michael Moore's proposal to just buy up all their stock. Yes, that could be done for about $4 billion. But then what? The companies would still need the money they are currently asking for to service their current debt and continue operating. Yes, it would enable the Government to put in new management, but that can already be done under the current proposals by establishing an oversight board with the power to remove existing personnel.

There are those in Congress who are saying "no" to this proposal and will oppose President Obama's ambitious agenda to put this country back to work. Many of them simply do not believe that is the role of government. Others believe there is political advantage for them in this position. Generally, they will oppose anything.

There is another group will only support "supply side" actions. They cling to the failed dogma made popular by Reagan but still largely accepted. It holds the only way to increase national wealth is to cut taxes, which will spur economic growth and benefit all eventually. After almost thirty years of following this prescription the results are plain to see. The gap between the rich and the middle class has widened and the continual underfunding of public works has not only killed and endangered people, but is crippling our productivity with bad roads, clogged ports, drowned cities, and an electric grid and telecommunications system far behind many of our competitors.

The financial bailout was the most recent example of supply side at work, this time on steroids. Under the threat of impending doom we passed a law designed to pump money into the top of the economic pyramid in the expectation that it would trickle down and free up credit for average people. We're still waiting for that promised result. We have seen these institutions hoard the money or use it to acquire competitors. It is time to blow the whistle on the supply siders and say no more. Moving forward we need to inject money directly where it is needed.

The auto industry presents us with the opportunity to change course and lay the groundwork for future actions. Loans to these companies will do several things. It will directly benefit the current employees and retirees. It will give the government leverage to make the companies maintain their new focus on more energy efficient vehicles. This is especially important with oil prices declining since consumer memories have historically been short. It will be a leverage point for building a domestic industry that leads the world in alternative fuel vehicles. Lastly, the inevitable disruptions cause by bankruptcy of the companies which could accelerate a slide into a depression would be avoided.

Tuesday, November 25, 2008

Hamdan Released- Even Bush Knows The Gig Is Up

As first reported last night and confirmed this morning Salim Hamdan has been flown back to Yemen. There was considerable concern that Bush would continue to hod him in Guantanamo even after he served his sentence but it seems that even Bush understands there are limits to his outrageous conduct.

Hamdan has been imprisoned in Guantanamo for seven years. He was the first to actually be tried by a Military tribunal. But the tribunal refused to convict him of most of the spurious charges against him, convicting him of only one count and, most importantly, sentencing him only to time served plus five months. This was widely seen as a rebuke to the prosecutors. But at the time, there was concern that Bush would continue to hold him past his sentence, based on his asserted authority to hold enemy combatants for the duration of the so-called war on Terror.

Well, for once Bush has thrown in the towel.

What was Hamdan's big crime? He worked as a driver for Osama bin Laden for a while. Now let's put this crime in perspective. Hitler had a driver named Erich Kempka. Unlike Kempka who was a high ranking SS officer who worked for Hitler for over a decade, Hamdan worked for a couple of years for OBL making $200 a month. Hamdan was a gofer. Kempka was in charge of Hitler's motor pool and was part of his inner circle, to the point that he was one of the men chosen to be with Hitler at the end. Kempka was not charged with anything by the Nuremberg court and, in fact, was called a defense witness in the trial of Martin Bormann.

But for Bush, Hamdan was one of the "worst of the worst." A man so dangerous that he had to be held in the hellhole of Guantanamo for seven years and eventually tried for things that are only crimes in Bushworld. This notwithstanding the fact that

Hamdan had maintained his innocence of war crimes throughout his detention. Then, during sentencing, he apologized for any pain caused by his work as bin Laden's $200-a-month driver in Afghanistan.

He said he worked for money, not ideology.

The sentence of the court meant that Hamdan was to be released on December 27, 2008, two days after Christmas. The "leniency" of this sentence did not go over well with the Department of Defense.

Defense officials had argued they were under no obligation to free him after his sentence. Under a post 9/11 detention doctrine set up by the United States, the Bush administration argued that it could hold enemy combatants indefinitely, even after time served for war crimes.

Since then they have reconsidered the absurdity of that position. The outrage of holding people without trial is bad enough. But to assert that prisoners can continue to be held even after they have been tried and served any sentence they are given is so far beyond the pale that even these bozos had to relent.

Over five hundred Guantanamo prisoners have been released without charges. Of the 250 being held another sixty have been cleared for release. And just earlier this week, a District Court overturned the "enemy combatant" of Boumediene and four other prisoners, ordering their release "forthwith." We'll see if the decision to finally release Hamdan indicates that Bush will accede to the court's ruling in the Boumediene case or whether he'll drag that case out till he slinks away.

Friday, November 21, 2008

The Guantanamo Decision-A Stark Truth Revealed

November 20, 2008 was a long awaited but still historic day. For the first time, a US Court has heard and decided on Habeas Corpus petitions of Guantanamo prisoners. Guess what? It held that Bush had no evidence to detain five of the six men in question.

This decision, Boumediene v Bush, reveals again, in starkest terms, the total injustice that has been done in our names in the so-called War on Terror. Not only have almost five hundred prisoners who Rumsfeld once called the "worst of the worst" already been released without charges, but here we have an impartial court saying that five of the ones that Bush has refused to release are being held illegally. The evidence against them is so flimsy that it does not justify holding them for trial.

In this ruling the Bush Administration was ordered to release five Algerians who have been held at Guantanamo for seven years. Unlike so many other cases in the past that have involved interpretations of the Constitution and various statutes, this case was decided on the facts. In these Habeas Corpus cases, the question was not whether these prisoners were guilty or innocent, but rather whether there was sufficient evidence to justify their continued detention until they could be tried at a later date. The court's decision is a resounding "no."

Lakhdar Boumediene was one of the six prisoners who filed habeas corpus petitions. Earlier this year the Supreme Court ruled that he had a right to seek Habeas Corpus review of his detention even though he had been declared an "enemy Combatant" under the Military Commissions Act. That decision, which was the latest in a string of defeats for Bush, was hailed by all people who believe in our Constitution and who seek a return to long held American values. Six months later Boumediene and the others received their day in court and the injustice of their detention was laid bare for the world to see. Following is some background and the gist of the court's ruling.

The six prisoners are Algerians who were arrested in Bosnia for an alleged plot to blow up the US embassy. A Bosnian court looked at the charges and threw the case out. That didn't stop the US from arresting them on the same charges. Eventually, even Bush dropped the Embassy charges and held them instead on charges that they were planning on traveling to Afghanistan to fight the US.

The Government blew a cavern full of smoke in this case, introducing 650 pages of exhibits and 53 pages of narrative. To counter this barrage of baloney, the prisoners presented 1650 exhibits and over 200 pages of narrative. The question before the court was simply whether these men could be classified as "enemy combatants," as defined by the MCA. The standard of proof was as low as you can go. It's called "preponderance of the evidence" and is essentially a 51% to 49% test. Is it more likely than not that they are enemy combatants?

When all was said and done, Judge Leon said the whole case boiled down to the evidence of one unnamed source contained in a single classified document. The whole case was built on what this one person said. Since no person, let alone a judge, can simply take any statement at face value, Judge Leon tried to look further into the veracity of this witness and the truthfulness of what he said. Analyzing the entire record, the Judge concluded that there was no evidence presented regarding the credibility of the witness or the reliability of what he said. Beyond that, there was no other evidence corroborating the allegation that the prisoners had any plan to fight in Afghanistan.

Think about that a minute. Five people were imprisoned in the hellhole of Guantanamo for more than seven years on the testimony of a single unnamed person, whose truthfulness could not be verified and without a single bit of evidence to corroborate what he said. To call this a miscarriage of justice is a gross understatement. And to put the travesty of Bush's concept of justice into starker relief, one of his Military Commissions had already held that this was sufficient evidence to continue the imprisonment of these men. If anyone doubted that the commissions are little more than kangaroo courts this case should resolve those doubts.

Judge Leon was sufficiently moved by the injustice done these men that he asked the government not to appeal the case. As noted by SCOTUSBLOG,

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of Bensayah. He said he was appealing to those leaders “to end this process” for the five.

Amen to that.

There continues to be handwringing in some quarters about the closing of Guantanamo, particularly what to do with detainees. This case again demonstrates that the detainee issue is overblown. Almost five hundred have already been released. To the extent the case against these five is any indication, it is probable that there are only a handful of remaining prisoners who should continue to be held and prosecuted.

Wednesday, September 10, 2008

Palin's Alaska - A State Unlike Any Other

[Before beginning, I give you these numbers - 1841, 1850, 1865, 1881, 1901, 1923, 1945, 1963.]

Many people have pointed out that the closest thing to foreign policy experience for Sarah Palin is when she eats Belgian Waffles at the Wasilla International House of Pancakes. Similarly, it has been noted that she has zero experience in the domestic issues facing the Federal government. But there is something arguably worse. She hasn't had the kind of experience faced by most State governors.

Sarah governs a state like no other. When you put aside all the little hot button issues, most decisions that state governors and legislatures face revolve around two sets of questions. First is the question of revenue. Who should be taxed and how much should they be taxed? Second is the question of expenditures. What programs should get the money and how much should they get? Well, when it comes to the first set of questions, the most difficult ones, Sarah's experience leaves her uniquely unqualified to be the governor of any other state let alone, heaven forbid, the United States.

Here is the resource book published by Alaska's Department of Revenue in the fall of 2007. It shows actual revenues and expenditures for 2007 and projections for 2008 and 2009. Let's look at the 2008 numbers.

For 2008 Alaska plans on collecting $13.2 billion. Half of that amount, $6.6 billion, comes from oil taxes. $3 billion comes from income on all the investment the state has. $2.5 Billion comes from the Federal government. The smallest category, $1.1 billion, comes from licenses, fees, royalties and taxes on mineral companies and the like.

Of the many things that jump out is the $3 Billion in investment income. The United States has almost $10 Trillion dollars in outstanding debt that will require us to pay more than $450 billion in interest on the national debt in 2008. The deficit for just this year is over $400 billion. And of that amount $2.5 billion is money that we borrowed so that we could give it to Alaska, a State that is so awash in cash that it earns $3 billion on its investments. The mind is past boggling.

Next, look at the oil revenue, $6.6 billion. This number is actually much lower than the actual number of $8.9 billion for 2008. That number grew so much because the Alaska's taxes are tied to the price of oil. As oil prices go up, oil company revenues go up and Alaska demands a piece of the action. Sounds an awful lot like a windfall profits tax, doesn't it. That's the kind of tax Obama wants to enact but Mccain opposes. McCain argues that such a tax would stifle new exploration. Of course, we know that is total baloney as made clear by the Alaska experience. Alaska's profits tax on oil hasn't stopped the oil companies from exploring in Alaska. I'd love to see Palin explain why something so good for Alaska is bad for the United States. But I digress.

The main thing this budget reveals is that Palin has never had to face the hard choices about who to tax and how much to tax that are faced in the other states and magnified a thousand fold for the Federal government. She has no knowledge of the complexities of the income tax code. Her experience has not exposed her to the concept of an individual income tax structure that is supposed to be progressive, one in which the tax burden is the largest on those most able to bear it. The Republicans have done their best since 1980 to whittle away at this concept, but it is an idea that is totally foreign to Alaska.

She doesn't have any exposure to the social security and medicare tax system and how they are integral to the welfare of our seniors. She doesn't really know anything about the corporate tax system, which has a marginal rate of 35% but results in an effective tax rate that is far less and in which two thirds of corporations pay no taxes

When you leave the foreign affairs realm, many of the most contentious debates a President face involve the budget. Where to get the money for Head Start, health care, education, environmental protection and on and on. No one wants to pay taxes, but someone must. Sarah lives in a state that is riding the type of gravy train that has immunized her from having to face these tough choices. It is hard to imagine anyone less qualified to serve as President of the United States.

Oh, yes, the numbers at the beginning. Those are the years in which a President has died in office. Eight Presidents have died in office. Every one of those events has been tragic. That tragedy is compounded immeasurably if the Vice President is unqualified to take the reins of government.

Wednesday, August 20, 2008

Court Rules That No Fly List Can Be Challenged

The Ninth Circuit ruled that a person can challenge the inclusion of their name on the government's no fly list. Sounds pretty obvious that you should have that right, but that isn't the Bush Administration's position.

The case is Ibrahim v Department of Homeland Security and it was decided by a two to one decision of the Ninth Circuit Court if Appeals.

Ms. Ibrahim was a Stanford student on a student visa from Malaysia, who also happens to be a Muslim. When she tried to fly home from San Francisco, she was blocked from boarding the flight, detained and handcuffed in front of her fourteen year old daughter, and taken to a police station. Two hours later she was released and she was permitted to fly home the following day after being subjected to "enhanced searches."

The suit was filed against numerous agencies and individuals alleging a range of violations, from Constitutional due process to violations of the Administrative Procedures Act. Basically all of her claims were denied in the District Court, which is the first level trial court in the Federal system. The Court of Appeals reversed two critical aspects of the trial court's decision. First, it held that the trial court did have jurisdiction to here the issue of whether her name was wrongly placed on the list. Secondly the court held she could pursue a claim against a TSA employee, John Bondanella, in his personal capacity, for his actions in connection with her detention.

This is a complex case involving questions of jurisdiction and statutory construction. (The Constitutional issues were not addressed.) The government was arguing that any challenges of this sort could only be filed in an appeals court. But the Ninth Circuit disagreed, holding that the statutory provision in question, 49 USC 46110, did not apply in this case because the no fly list is maintained by the Terrorist Screening Center, which is part of the FBI and therefore not covered by that statutory provision. Beyond the technical question, which is a close call, the Court looked at the practicalities of the case.

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing
before an administrative law judge; there was no notice-and- comment procedure. For all we know, there is no administrative record of any sort for us to review. See Florence, supra, at 2155-59 (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.

It remains to be seen what impact this decision will have and whether it will be appealed. But is once again puts at issue the entire question of whether there should even be these kinds of lists and if they are to be maintained how can it be done in a way reasonably consistent with civil liberties.

I believe a no fly list makes no sense. If someone is a real threat based on real evidence they should be investigated and prosecuted. If there is no evidence of wrongdoing they should be free to conduct their affairs like any other citizen. If the authorities have reason to believe someone is going to bomb a plane, they can be detained and prosecuted. But having a list of hundreds of thousands of names of people who might have talked to someone who talked to someone who read a book about terrorism is idiotic. It not only abuses the rights of innocent people but also diverts recourses from meaningful activity. It is all done in the interest of creating an illusion of security, nothing more.

Wednesday, July 30, 2008

Three More "Worst Of The Worst" Are Freed, With An Orwellian Explanation

The Department of Defense announced today that three more Guantanamo detainees have been released. We don't know their names but one was sent to Afghanistan, another to the UAE, and the third to Qatar. These are three more of the five hundred prisoners who Donald rumsfeld labelled as the "worst of the worst" who have been released from Guantanamo without charges. According to DoD there are 265 left to go.

This announcement is good news for these prisoners but what is really remarkable is the language used by DoD in making the announcement. First, there is this,

These detainees were determined to be eligible for transfer following a comprehensive series of review processes.

Comprehensive review process? It's been six years. We prosecuted and won victory in WWII in three and a half years but it takes six years to finally figure out these poor schmucks shouldn't be in custody. If it gets any more comprehensive they'll be sending these guys home with walkers.

But not to rest on its laurels, the release goes on,

The transfer is a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare.

"No longer than necessary?" Who are they kidding? Everything they knew about these guys was made known soon after their capture. If they are like the typical Guantanamo detainee they were not captured on a battlefield. They were guys who were turned over by bounty hunting Pakistanis and Afghanis looking for a quick buck. Most of them were foreigners going to schools or passing through, and some were locals against whom Afghanis had familial or clan grudges.

But especially rich is the crowing about this wonderful process, which is claimed to be unprecedented in the annals warfare. Damn right it is unprecedented. We pay bounty hunters to round up people and gin up some "evidence" about their supposed misdeeds. We hold and torture them for a while before shipping them to Guantanamo where they get more of the same. They are isolated for long periods, interrogated endlessly, and after six years we say "OOps," you are no longer a threat.

The press release goes on to say that another 65 of the remaining 265 prisoners are eligible for release. And so far people have been released to the following countries,

Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Qatar, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, United Arab Emirates, and Yemen.

What about the ones not yet cleared for release. Well, one is a guy named Hamdan who is currently on trial. Unlike the other 500, he actually had a connection to Al Qaeda, but his "crime" seems a little tenuous. He was nabbed for having been Osama bin Laden's driver. Here at the ACLU's website is an update on what happened at the trial today. Actually, they watched a movies prepared by the DoD which depicts the evils of AQ, but doesn't say anything about the actual case that is being tried.

If these prosecutors had any sense of history they would understand the true pathos and tragedy of this case against OBL's driver. In 1945 the US took the lead in prosecuting the surviving members of the genocidal Nazi regime. Anything OBL has done pales in comparison with what Hitler and his minions did. There was one person, though, who was not prosecuted — he was Hitler's driver. That man's name was Erich Kempka who, in addition to being Hitler's driver, was also an SS officer who was with Hitler from 1934 all the way to the last day in the bunker. Not only was he not tried at Nuremberg, he was a witness for the defense of Martin Bormann

In the words of the DoD press release our actions in Guantanamo truly are "unprecedented."

Thursday, July 17, 2008

Ninth Circuit: Supreme Court Handgun Case Doesn't Cover All Weapons

The Ninth Circuit issued an unpublished decision in the case U.S. v Gilbert on July 15 holding that the recent Supreme Court Second Amendment case does not give people the right to own automatic weapons and sawed off rifles. The court stated

The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm–unconnected with service in a militia–does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

Since the Supreme Court decided the Heller case there has been much speculation regarding the scope of the ruling. Would this open the flood gates to unrestricted ownership of handguns and permit the ownership other types of weapons, like assault rifles. The Ninth Circuit opinion says that it does not.

The facts in Gilbert are straight forward. Gilbert was charged with ten counts involving owning a machine gun, owning unregistered firearms, and being a felon in possesion of a firearm. He said he knowingly bought some of the weapons from undercover agents because he wants to challenge the Constitutionality of the gun laws. At the end of the trial the jury was given the following instruction,

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

Gilbert appealed his conviction arguing that the jury instruction violated his Second Amendment rights.

The Ninth Circuit did not buy his argument and, as noted above, said that the Supreme Court's Heller decision articulates a limited individual right to possess a firearm that does not extend to machine guns, short barreled rifles, or to the ownership of weapons by felons.

Unfortunately, the Gilbert opinion is very short and does not include an explanation of why the court read the Heller decision in this limited way. But, beyond the limitations of the ruling itself, there is ample language in the Heller case to support this reading of the decision.

Like any case, the Supreme Court's Heller decision itself was limited to the facts of the case, which was the ownership of a handgun by a non-felon, who had not been judged mentally incompetent. However, there was much discussion in the dicta of the opinion where the majority not only says this is a limited right but also discusses areas where government regulation would not conflict with the Second Amendment.

Here is an excerpt from an article I wrote discussing the limitations in the Heller opinion.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

It remains to be seen how the Supreme Court ultimately refines the limits of the Heller decision. But the lower courts seem to be reading it narrowly and following the limitations that are suggested in the ruling. And lest anyone think this limited approach has only appeared in the so-called "liberal" Ninth Circuit, District Court decisions in Missouri, Johnson v U.S., and Louisiana, U.S. v Dorosan, have reached the same conclusion.

What does all of this mean for Obama and other Democrats in the upcoming election? The Supreme Court has taken off the table one of the most divisive issues that has bedeviled Democrats in many decades of elections. For decades, the NRA has used the "right to bear arms" as a major fund raising tool and rallying cry. They have been able to successfully attack sensible gun control legislation by using the absolutist argument that Democrats want to totally disarm all Americans. They will not be able to do so any longer.

The Supreme Court has decided there is an individual right to own handguns. That decision, right or wrong, will be with us for a long time. Moving forward, states and cities cannot enact laws that impose a complete ban on handgun ownership. Beyond that, however, a conservative majority of the Court, in an opinion written by Scalia, has signaled its willingness to accept most forms of gun regulation currently on the books, and the lower courts are already adopting that position.

Scalia, the darling of the NRA, has said that guns can be regulated. The Second Amendment right to own a gun does not extend any person, regardless of their background, it does not mean that any type of gun can be owned, and it does not mean a person can take a gun anywhere they wish.

The NRA won its Second Amendment battle but it will prove to be a pyrrhic victory. A powerful fundraising and campaign tool has been taken away from them. They can no longer threaten that guns will be taken away from law abiding citizens if Democrats are elected. That issue has been decided. The issue left on the table is whether we can have reasonable gun control legislation designed to protect the health, safety and welfare of our communities. As the NRA finds itself defending gun ownership by felons, possession of automatic weapons, tanks and grenade launchers, and the carrying of weapons near schools it will find itself increasingly associated with the most lunatic fringe of the movement with no Scalia or Second Amendment to fall back on.

From this point on the discussion will shift to the reasonableness of specific types of gun control. Those are arguments that progressives can win. But we still need to elect Obama and a strongly Democratic Senate to ensure that the courts continue to interpret Heller in a limited manner.

(I do recognize that Heller only applies to Federal jurisdictions and the Court has yet to rule on Second Amendment incorporation, which would make it applicable to the states. We have not had an incorporation case in a long time so that should prove interesting. While there are some peculiarities to the Second, in the end I'd be surprised if it is not made applicable to the states.)

Crossposted from docudharma

Thursday, June 26, 2008

The Gun Control Decision Is Good For Obama And Democrats

Today, the Supreme Court issued a decision in District of Columbia v Heller striking down the District of Columbia ban on hand gun ownership. Contrary to what some may think, the world has not been turned on its head, except that a rallying cry for the NRA and other forces that have used gun control as a wedge issue against Democrats for decades has been partially neutered.

The Court held that the second amendment right to bear arms is an individual, not just a collective right associated with having a state militia. But, it is still a limited right and is not totally disconnected from the concept of a militia. The court basically held that at the time of the founding the weapons that people had for personal protection are the same weapons they brought to their service in the militia. It is those weapons that the court says are covered by the Amendment.

This decision makes clear that the court is not invalidating all gun control laws. It does not mean that licensing requirements are invalid. It does not mean that people have the right to own artillery, tanks, sawed off shotguns and M-16s. It also doesn't mean people can carry concealed weapons or take weapons to school. Finally, felons and people with mental problems can also be prohibited from holding weapons.

This opinion was written by Scalia, the republican icon of the ideal Justice. Because his opinion would validate most of the types of gun control legislation on the books today, it steals the thunder from the gun lobby about gun rights in the US today. As such, It will be a net positive for Obama and other Democrats.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Finally, the decision leaves open the question of the legality of registration laws.

Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the Dis- trict’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Basically, the Court is saying that it is impermissible to have an outright ban on weapons for use in the home for personal protection. Agree or disagree, but that is a limited ruling. Contrary to what Second amendment advocates believe, Scalia makes clear that the government can restrict who can own weapons, what type of weapons are protected and where and how those weapons can be carried. That is really what most gun control advocates have been wishing for all these years. i think it takes away the Second Amendment as a wedge issue, and that can only help Democrats.

Saturday, June 21, 2008

Five Reasons Why FISA Bill May be Worse Than You Think

The House passed FISA bill is bad legislation for many reasons, but these are the five biggest problems I see.

Politically Unnecessary

When addressing a bill with so many substantive issues I hate to start out with the politics of the matter but in this case it seems necessary. There can be no doubt the Democrats who support this bill do so in the belief that their support will protect them from charges they are soft on terrorism. That belief is misplaced. In the upcoming election the only card the Republicans have to play is the fear card. Every Democrat will have to face the "soft on terrorism" charge irrespective of how they vote on this or any other piece of legislation. Why? Because the fear card is premised on a lie, and that lie will be repeated over and over again.

The only way to successfully defeat the fearmongers is to attack them straight on. Tell the voters that the Republicans have made us less safe. They are pursuing policies that create enemies. They have depleted our blood and treasure and put our country at risk. They seek an imperial form of government that ignores all of our civil liberties. They aren't just after terrorists, they are after every person who dares to disagree with them. And they have besmirched the sacrifice of our troops by trashing the Constitution for which those troops have fought and bled and died.

Makes A Mockery Of Judicial Oversight

This bill contains a patina of judicial oversight that is so thin that it would be laughable were the subject matter not so serious. The ACLU summarized it this way

This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

You read that right. They can spy on whoever they wish without telling a court who they are spying on, why they are spying on them and how they are spying on them.

This so-called judicial review is so weak that it may well not meet the requirements of the Fourth Amendment, but that is a discussion for another day.

Bush's Claims Of Unlimited Power To Ignore FISA Is Untouched

One of the most laughable parts of the bill the so - called "exclusivity " provision. The existing FISA already says that FISA is the exclusive authority for the conduct of foreign surveillance. So what does this bill do? It adopts new language that says- well, the same thing. Only this time Congress says it really means it. It does make one thing even clearer than before. It says that Bush can't rely on any other law to get around FISA unless that law specifically amends FISA. This is designed to prevent a President from arguing, as Bush did, that a law such as the Authorization For The Use Of Military Force had the effect of overriding FISA. But since that was a weak argument when first asserted by Bush, there is little doubt he would find some other lame argument to read his way around this "exclusivity language."

Moreover, this "exclusivity" language doesn't even touch Bush's main argument. Bush says that his "Commander in Chief" powers under Article II of the Constitution override FISA or any other law he finds to be inconvenient. He has used that claim of authority to torture people and ignore the Geneva Conventions and our own laws governing the treatment of prisoners, to hold people indefinitely without charges, and to wire tap people at his whim. The legal opinions he relies on make clear that Congress cannot pass a law that restricts his powers.

This Article II issue can only be answered by the Courts. As long as Congress keeps the issue from going to the courts, he will continue to assert his power with impunity.

Turns Qwest Into A Sucker

Not all of the telecom companies gave in to Bush's demand for access to their customer's calls. Qwest, on the advice of counsel, declined. They did not accept Bush's assertions that the request was legal and told Bush to get a court order. Qwest later said that it was penalized by the Bush Administrationfor its decision to respect the Constitution. And now the Congress will add salt to the wound by immunizing the other companies that acceded to Bush's lawlessness. Moving forward, company counsel will have a much harder time persuading their management to resist the illegal demand of an administration bent on lawbreaking.

Immunity May Violate The Fifth Amendment

There has been little discussion of whether the telecom immunity provision is Constitutional. Some comments have discussed the prohibition against ex post facto laws and correctly noted that this provision is not applicable. There is, however, another provision that could invalidate the immunity language. The Fifth Amendment prohibits the taking of private property without just compensation. There is at least a possibility that the immunity provision violates this guarantee for the following reasons.

When people think of the Fifth Amendment taking provision they usually focus on real estate that is condemned by the government. But the property interests it guarantees are much broader than that. For over one hundred years, at least since Pritchard v Norton, the Supreme Court has recognized that a law suit is property. As such, can be protected by the Fifth Amendment. That is what is at stake here.

FISA provides that law suits can be brought against companies or other people who violate FISA and if the plaintiffs are successful, they can recover civil damages of up to $1,000 for each violation plus punitive damages. These are the law suits that will be terminated if the immunity provision is enacted.

To establish a Fifth Amendment violation, the plaintiffs would have to prove that their legal claims had already vested. To do so, they will have to overcome the hurdle of a Circuit Court decision in the forties, Fisch v General Motors, which refused to find an illegal taking when Congress enacted amendments to the Fair Labor Standards Act that nullified the claims of some workers. But that case is distinguishable from this one and the issue has never been ruled on by the Supreme Court. Here is an article that discusses the matter in greater detail.

If this immunity provision is enacted we may get a chance to see whether a court finds it to be an unconstitutional taking. But the very specter of that possibility should have given the House pause as it passed the bill. While I don't really hold out any hope that this bill will be changed or blocked in the Senate, my heart's cockles would be warmed if I were wrong.

Wednesday, May 28, 2008

Bush Squeals When Times Pokes Him On GI Bill

The New York Times hit a home run when it exposed Bush's mendacity on Jim Webb's GI bill causing Bush to squeal like a stuck pig. It all started with this New York Times editorial which nails Bush's opposition to Webb's bill with some biting but all to accurate commentary.

He is wrong, but at least he is consistent. Having saddled the military with a botched, unwinnable war, having squandered soldiers’ lives and failed them in so many ways, the commander in chief now resists giving the troops a chance at better futures out of uniform. He does this on the ground that the bill is too generous and may discourage re-enlistment, further weakening the military he has done so much to break.

The pain of this truth was too much for Bush, causing him to issue a White House Statement that reads like the squirming of an emperor who has finally been called out for having no clothes.

Once again, the New York Times Editorial Board doesn't let the facts get in the way of expressing its vitriolic opinions - no matter how misleading they may be.

In today's editorial, "Mr. Bush and the GI Bill", the New York Times irresponsibly distorts President Bush's strong commitment to strengthening and expanding support for America's service members and their families.

Really? The Times is misleading? This from the man who lied this country into a war and has governed by sowing fear for the last eight years. And Bush's commitment to service members? His only commitment has been to continue sending them into battle in a tragically conceived and pitifully executed war for repeated tours, to cut VA funding, to conceal their sacrifices by limiting press coverage, and by stressing our military capabilities to the breaking point.

So what is it about the Webb Bill that is so objectionable to Bush? As summarized by the Times,

Their bill would pay full tuition and other expenses at a four-year public university for veterans who served in the military for at least three years since 9/11.

At that level, the new GI Bill would be as generous as the one enacted for the veterans of World War II, which soon became known as one of the most successful benefits programs — one of the soundest investments in human potential — in the nation’s history.

In Bushworld this type of benefit is unacceptable and anyone who says otherwise is a vitriolic bleeding heart. But why is that so? According to Bush, the bill is fatally flawed because it does not provide to the transferability of veterans benefits and those benefits are not based on length of service.. I'm not kidding.

This is how Bush characterized the type of Bill he wants.

There are several GI bill proposals under consideration in both the House and Senate. The Department of Defense has specific concerns about legislation sponsored by Senator Webb because it lacks transferability and could negatively impact military retention.

The President specifically supports the GI Bill legislation expansion proposed by Senators Graham, Burr, and McCain because it allows for the transferability of education benefits and calibrates an increase in education benefits to time in the service.

Give me a break. GI Bill benefits have never been transferable. If Bush wants Congress to revisit the entire concept behind veterans benefits to determine if transferability is appropriate, fine. But that is no reason to oppose the increase in educational benefit. The length of service argument is equally lame. Benefits have always been based on meeting a minimum service requirement. Period. There are re-enlistment bonuses and other incentives to encourage soldiers to expend their tours of duty.

Bush knows he is in a politically and morally untenable position because he can't discuss his real reason for opposing this legislation. He's really afraid that these benefits will be paid for with a tax increase. Perish the thought. And, horror of horrors, the increase will fall on the Bush Protected Class.

The bill passed the House with a surtax on the wealthy, in the form of a 1/2 percent tax on incomes over $500,000 and over $1 million for joint filers. This is referred to as a "Patriot's Premium" by Democrats, but has incurred the predictable wrath of Republicans.

"Raising taxes is Washington's easy way out all the time," said House Minority Leader John Boehner, R-Ohio. "And I'm opposed to raising taxes."

What Boehner and his merry band of brain dead bozos fail to acknowledge is that by not supporting a tax hike now they are shoving a new tax burden on our children and grandchildren, but that's another story.

The only formal veto threat on this bill came from the Office of Management and Budget.

The White House this week issued a veto threat against the overall measure, singling out the tax increase to pay for veterans benefits as a top reason. “The president has been clear that tax increases are unacceptable,” the Office of Management and Budget said in a statement.

So what is it? What are Bush's real objections? The transferability and retention arguments are beyond lame, even for him. The only reason that is consistent with everything this administration stands for is Bush's consistent effort to reduce taxes on his protected class. Nothing else makes sense.

Now Bush may be saved yet. The Senate passe G I Bill does not include the House passed surtax. Senator Webb has said he would support the tax but there is no certainty that enough Senators will agree. They could well cave in to pressure, the type that has rendered the "world's greatest deliberative body" into a shadow of its former self. But if both Houses pass a bill with the tax provision and Bush vetoes it, nobody should be under any misimpression as to why the veto occurred.

Tuesday, April 29, 2008

The Truth About The Military Commissions Laid Bare at Guantanamo

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

(Note, there is no transcript available at this time.)

Not only did Davis say that the outcome of these proceeding was rigged but that the motivation for even having the trials was political.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis also addressed the use of so-called "evidence" extracted by the use of torture.

He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

Col. Davis' statements in court were more specific and damning than the reasons he gave for resigning last October, as outlined in an op-ed in the L. A. Times. He articulated three reasons. First, Susan Crawford, the new person appointed as the convening authority issued orders that removed any pretense of her objectivity in the proceedings. Second, Crawford was undermining any possibility that the proceedings would be viewed as legitimate by the Nation and the world, by insisting on more secrecy than what was needed for national security reasons. Finally, as echoed in his testimony he

resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

Subsequently, Col. Davis felt the need to be even more critical of the military commissions. In an article in the Nation after six Guantanamo detainees were charged he talked about the prospect of fair trials by relating the conversation he had with Haynes, which was later covered in his testimony to the tribunal.

Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

This has been a long road to disillusionment for Col. Davis. Before he testified, before the Nation interview, and before his op-ed following his resignation, he wrote an op-ed in the Times defending the treatment of prisoners at Guantanamo and the fairness of the MCA procedures. He summarized by saying,

Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.

Four months later, after seeing how the Bush Administration cretins would work to subvert the purpose of the law (though I am not one who ever believed it workable) and further besmirch the principles of the nation he had enough. Though he has already publicized his view regarding the travesty of the MCA proceedings, what he did in the Hamdan trial is different. He swore under oath as to what he knew, had seen and had heard.

It is easy to be cynical about what, if any, effect this testimony will have on the Hamdan trial. But it seems undeniable that sworn testimony from the ex-Chief Prosecutor that challenges the underlying fairness, objectivity and veracity of the proceedings in Guantanamo, conducted under the auspices of the Military Commissions Act, will rightfully give support to all those who have questioned the validity of this process from the outset. Also, it should lay the groundwork for a truth telling session, either by the court or Congress, with Brig. Gen. Thomas W. Hartmann, Deputy Defense Secretary Gordon R. England, and William J. Haynes II. Hopefully, it will also generate political support for the Congress to finally begin holding the people in this administration accountable for the travesties they have committed in our names.

There is one final sad note about all of this. Even if these trial were fair Bush has corrupted the system beyond recognition as pointed out in this quotation from the Nation article,

Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They can hold you there forever until they decide to let you out." The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, "In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released."

Friday, April 11, 2008

Berkeley Dean Says Yoo's Actions Don't Warrant Firing

In an announcement to faculty and students Christopher Edley, Jr. , Dean of the Boalt Hall School of Law at Berkeley said that in his personal opinion the actions of tenured professor Jon Yoo do not rise to the standard that would warrant Yoo's dismissal.

That is not to say that Edley is an apologist for Yoo. In fact, some of his comments are striking. Edley writes,

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law.

Edley also recognizes the special role that lawyers play in the government.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter?—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Notwithstanding his lack of regard for Yoo's work Edley says that the standard for removal is rightfully high, in order to preserve the principles of academic freedom.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

In my mind, the jury has yet to be empaneled on the question of whether Yoo's actions rise to the level of a legal crime. I think there is no doubt he committed grievous moral crimes.

There is one thing the Dean says with which I seriously disagree. Edley writes,

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Rumsfeld, Bush and the rest are certainly more culpable than Yoo. But Yoo was more than an advisor. He was the indispensable enabler. Without his "legal" opinions, the abuses would have stopped or not even begun. For that, Yoo deserves his special place among the reviled.

The process of holding Yoo accountable may start with John Conyers hearing in May which has now been expanded to embrace the subject of the Principle's Meetings, where specific torture techniques were planned and approved by Rice, Rumsfeld, Ashcroft , Tenet, and Cheney, on behalf of and with the certain concurrence of Bush.

Wednesday, April 09, 2008

John Yoo's Torture Memo Is Going To Court

Lawyers for Ali Saleh Kahlah al-Marri have requested the Fourth Circuit consider the Yoo memorandum in its deliberations on al-Marri's pending appeal. Specifically the lawyers argue that al-Marri was designated an illegal enemy combatant based on the erroneous legal advice contained in the Yoo memorandum and that if the Circuit Court upholds his detention it will be doing so on the basis of advice that even the Department of Justice has rejected.

This developnent is discussed in this Washington Post article and in

The March 14, 2003 Yoo Memorandum has been the subject of much discussion, including this post by Valtin where he publicizes the move by the National Lawyers Guild to have Yoo disbarred. One of the problems that many of us who have reviewed the memorandum have in writing about it that it is such a terrible piece of legal work that it is hard to know where to start.

The memorandum has four parts, but all hinge on the first two parts which are summarized as follows:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

This can be further summarized more succinctly. According to Yoo, The Commander in Chief can take any action he wishes regardless of whether that action would violate any provision of the Constitution or any Statute passed by Congress.

There is only one problem with his conclusion. There is no Supreme Court decision supporting that conclusion. Yoo cites the very few Supreme Court decisions on the subject and none of them say that. There are opinions discussing the breath of the President's powers in waging war, but those cases do not involve direct violations of Constitutional or statutory provisions. They involve questions regarding the President's ability to take an action in the absence of express statutory authority. And even here Yoo's opinion is on shaky ground because of YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), where the Supreme Court struck down President Truman's attempt to seize steel mills during the Korean war in the absence of Congressional authorization.

Furthermore Yoo knows that his opinion is built on a house of cards. In a clever footnote he states,

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

We're not saying the Constitution doesn't apply during war time, because the Court has held otherwise. We're just saying that it doesn't apply to the President's actions while he is conducting a war. Nice try John, but no cigar.

In any event, the filing in the al-Marri case is good news because we just might get an early glimpse of an Appeals Court's opinion on Mr. Yoo's handiwork. As reported by the Post,

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

Legal "experts" have different views on the issue. Again, as reported by the Post,

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."

I would love to see a court react directly to the Yoo memorandum, or even just give it the back of their hand in some footnote or dicta somewhere. I suspect this will probably not be that case, but hope springs eternal.

Thursday, April 03, 2008

Yoo Says the Fourth Amendment Does Not Apply To Bush

John Yoo's damage to our Constitution and the nation it created is even worse than we thought. We now discover that in 2001 he told BushCo that they were free to violate the Fourth Amendment of the Constitution. This little part of that quaint document says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yoo, on behalf of the Office Of Legal Counsel of the Justice Department, the office that tells DOJ what the law is, advised

Our office recently concluded that the Fourth Amendment had no application to domestic military operations,"

We do not yet have a copy of the 2001 memo. The language above is found in a footnote in Yoo's 2003 memo which holds that Bush can order the torture of anyone as long as he deems it necessary.

The full text of the footnote in the 2003 opinion states,

10 Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terorist Activities Within the United States at 25 (Oct 23, 200 I).

If U.S.v Verdugo-Urquidez is the opinion relied on by Yoo, that is a slender reed indeed. That opinion involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government.

There is another footnote in the 2003 opinion which is almost comical. Note 11 provides.

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) . 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendmenr:simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

It would not be surprising if we find a similar statement in the Yoo's 2001 regarding the Fourth Amendment, because that is the nature of his "opinions." They are filled with citations, most of which don't support and in many cases contradict the conclusions reached. After thousands of words we are then given conclusory statements to the effect that the President has the power to do whatever he wishes. While the Constitution applies to the President, it just doesn't apply in such a way that would restrict him from doing whatever he, in his sole omnipotent discretion, deems necessary.

The Justice Department has since disavowed both memoranda, they claim. A DOJ spokesman said

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

There is confusion as to whether this memo was the legal underpinning for Bush's so-called Terrorist Surveillance Program.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

That sounds like horsepuckey to me since Yoo's memo

was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The importance of this memo, though, is not whether it was used to justify one program or another, or even whether it was subsequently disavowed. Rather, it illustrates the mindset of the lawless group of people running our government. We have seen much evidence of this by their deeds in the last seven years. We know understand better why they have such utter contempt for the Constitution. Their lawyers had seen written in the Document a new Article that says,

"Nothing in this document shall in any way constrain, restrict or inhibit the authority of the 43d President from doing whatever he wishes in his role as Commander in Chief. In that role he shall have all the powers possessed by the King of England prior to the Magna Carta plus such other additional powers as he deems necessary."

My apologies for being so snarky, but the outrage of these guys leaves little room for intelligent discussion. That will come later when we have the actual text of this memo to read.

Monday, January 21, 2008

The President Ordered To Comply With A New Law

The President has been ordered to comply with a new law providing fuel to people who have been hit hard by this bitter cold winter. OK, the President in this case is Ahmadinejad, not Bush, and the order came from Ayatollah Ali Khamenei, Supreme leader of Iran, not the Supreme Court of the United States, but this news is instructive for us on several levels.

As reported by the Guardian,

At least 64 people are reported to have died after gas supplies were turned off in sub-zero temperatures. The cuts, belying Iran's status as possessor of the world's second biggest natural gas reserves, have provoked public outrage and threaten to turn a mood of rumbling unhappiness into a winter of discontent for Ahmadinejad.

In response to this crisis, Iran's Parliament passed a law, over Ahmadinejad's objection, that allocated almost a billion dollars to pay for the distribution of heating gas to the suffering people. When Ahmadinejad refused to comply with the law, Iran's Supreme Ruler intervened and ordered that the law be obeyed. In issuing the order Ali Khamenie stated,

All legal legislation that has gone through [the required] procedures stipulated in the constitution is binding for all branches of power.

Imagine the concept. All laws that are duly enacted must be carried out by the Executive Branch, and if they are not a supreme authority will step in and order the executive to carry out his responsibiliy.

There is more than a little irony in this story for us in the United States, having endured for seven years a President who believes that he only needs comply with laws he agrees with. There is further irony in the swiftness and decisiveness of the action overriding the Iranian executive's disobedience to the law compared with the dilatory and obsequious behavior of our Supreme Court.

But there is arguably a more important aspect to this story. It seems that when our intelligence community issued a National Intelligence Estimate finding that Iran had stopped it's nuclear weapons program in 2003, it didn't just chill the war mongers in our country. It had the same effect in Iran.

To the surprise on no one who has been paying attention, Ahmadinejad has been spouting his anti-U.S, rhetoric primarily for domestic consumption. By building up the threat of the United States he has been able to rally the populace behind the nationalistic desire for self defense and keep his domestic critics at bay. But the Parliament, the populace , and Khamenie have grown weary of the President and his tactics.

Reports from inside Iran suggest Khamenei has grown increasingly disenchanted with Ahmadinejad's economic record, which has been marked by surging inflation and dramatic rises in basic food and housing costs.

In the past, Khamenie has cautioned against criticism of the President in the interests of national unity in the face of the threat of a US attack. Well, the NIE changed that. The NIE

appeared to ease the threat of American military strikes against Iran's uranium enrichment activities, which Ahmadinejad had used to silence opponents and clamp down on domestic dissent.

The diminishing external threat appears to have emboldened the president's opponents in the run up to parliamentary elections on March 14. It may also have removed the need for Khamenei to keep his displeasure quiet.

Imagine that. A leader trying to use fear as a tool of governance to keep his people cowed. Only in Iran, I guess.

Seriously, it appears the NIE did much more that just force the Bush Administration to scale back it's war talk and fear mongering in the United States. It also seems to have enabled more moderate elements in Iran to find their voice. And almost coincidentally it helped Iranians desperately in need of heating assistance this winter find some relief. Who would have thought that one little intelligence document could do so much.