Category: Law and Constitution

Driven by Fear, American Leaders Did Unspeakable Things. But Should They Be Punished?

Clicking on the above image will download a PDF of the 525-page unclassified executive summary of the report.

Clicking on the above image will download a PDF of the 525-page unclassified executive summary of the report.

Now that the nation and the world have had some time to read and digest the Senate Intelligence Committee’s massive report on the U.S. use of torture in the wake of the 9/11 attacks, it seems clear that grievous and heinous international war crimes were committed. These crimes were known and sanctioned by President George W. Bush, Vice-President Dick Cheney and other high-ranking Administration officials.

As the New York Times opined on today’s editorial page:

These are, simply, crimes. They are prohibited by federal law, which definestorture as the intentional infliction of “severe physical or mental pain or suffering.” They are also banned by the Convention Against Torture, the international treaty that the United States ratified in 1994 and that requires prosecution of any acts of torture. (Emphasis added)

We have participated many times in recent decades in the hunting down and prosecution of other nation’s leaders for committing acts of torture. Our — and specifically President Barack Obama’s — refusal to even consider conducting a criminal investigation into these outrages is unconscionable and indefensible.


On the other hand, the situation with our former President and his Administration may well qualify for somewhat different treatment. Where others who have been prosecuted for such crimes sought personal power and gain, there is little doubt in most peoples’ minds — including this fairly strongly Leftist writer — that what was done by Bush et al was done primarily out of fear and from a complete lack of understanding of how to react to terrorism on our own turf. We, uniquely among nations, had seldom been the victims, historically, of such attacks. There were no clear precedents for our dilemma.

In the days and weeks following 9/11, the intelligence community in disarray as it played a collective game of CYA to avoid the blame for the attacks that it collectively richly deserved, there was undoubtedly a sense in the White House that these attacks could well be the precursor of many more and harsher onslaughts. As we should have but didn’t learn in Vietnam, fighting an invisible enemy who shines your shoes by day and bombs your barracks by night is an almost impossible thing to be called upon to do.

Charged with protecting what has now become — frighteningly, for historical reasons — known as the “Homeland” against further terrorist attacks was first and foremost in the minds of Mssrs. Bush and Cheney. They reacted rather than pausing, thinking and planning. They almost certainly felt they didn’t have the luxury of time. In the process, they missed a huge opportunity to gain global support and admiration, but that was not their focus: they were intent on one thing and that was stopping another attack.

While it is clear that these men knew precisely that what they were doing were war crimes and illegal even under U.S. law, they undoubtedly felt pushed to the wall where the call of duty overrode their sense of legality.

None of that excuses what they did. But it does make it more understandable.

President Obama should order a full-scale investigation of these war crimes. Anyone found criminally liable should be convicted and sentenced. And then he should grant full pardons to those at the top out of an understanding for the horrible dilemma they faced, the lack of information and experience on which to base horrifically difficult and complex decisions, and their presumed good, unselfish motivations.

But it is important that we as a nation uphold the treaty on torture or we lose all credibility in criticizing and prosecuting other nations’ leaders for such conduct. It’s important that we establish ourselves as a nation governed by laws even when those laws produce difficult or rancorous results in our ranks.

President Obama has said repeatedly that, “we need to look forward as opposed to looking backwards,” which is an empty statement with no meaning or purpose. It is possible to do both, as the Times points out. I would argue that it is necessary to do both.

Today, the American Civil Liberties Union and Human Rights Watch are to give Attorney General Eric Holder Jr. a letter calling for the appointment of a special prosecutor. I would strongly urge President Obama to approve the idea and make that appointment. The new Republican Congress will, of course, oppose him and ultimately no prosecution or investigation may take place. But let the blame for that inaction, that tacit sanctioning of anti-human crimes fall where it belongs and not on this President whose only fault so far is to conclude wrongly that we as a nation couldn’t weather such a probe.

It is time, Mr. President, to act as the leader and Constitutional lawyer you are.

Supreme Court Critic Suggests Some Interesting Reforms

The United States Supreme Court is the only federal institution not to have undergone any structural or functional revision in its entire 226-year history. That fact alone should give us Americans great pause, particularly given the Court’s increasing influence of American life.

Edwin Chemerinsky, Supreme Court's Supreme Critic

Edwin Chemerinsky, Supreme Court’s Supreme Critic

As the Court’s new term began last week, one of the Court’s primary critics,Erwin Chemerinsky, who wrote a book called The Case Against the Supreme Court, renewed his call for significant reform. Chief among his suggestions:

  • instituting merit-based selection of judges, beginning with a bipartisan panel that would present a list of candidates from which the President would then make his or her selection;
  • reforming the confirmation process in some unspecified way;
  • establishing term limits for justices (which would require a Constitutional amendment, of course);
  • requiring that SCOTUS justices comply with all the same ethical standards as other Federal court justices (and presumably subject them to the same penalties for their violation, including removal from the bench).

Other than the vagueness of the second suggestion, I’m in favor of all of these steps on some level.

However, I feel like I should also remind my Liberal brethren that back in the day when Earl Warren ran the Court, the Right was sputtering furious at him for his liberal, activist decisions. “Impeach Earl Warren” was a real — and large — national movement. It will be a long, long time before there’s any chance of a Liberal court again in our history and perhaps that fact alone mitigates in favor of instituting some reforms to prevent its horrendous excesses.

In a column in today’s LA Times, Chemerinsky, who is Dean of the UC-Irvine School of Law, offered the most blanket and damning indictment of the Court I’ve ever read as an amateur Court Watcher:

I wish I could say that last year was an aberration. But, over the course of American history, the court has repeatedly failed at its most important tasks and at the most important times.

He and I have the same view of the Court so it’s not surprising I’d agree with him. But if you read that piece (and if you’re a Court aficionado, I highly recommend it), even if you are farther to the right than I am, I think you’ll agree that there is cause for alarm.

Wait. On What Planet Does This Make Sense? “We Want to Consider the Constitutionality of Your Law. Meanwhile, We’ll Let it Take Effect”!!??

One of the strangest rulings I’ve ever seen at the Federal appeals court level just occurred in Texas.

The Fifth Circuit Court decided it needed to review the constitutionality of a Texas law blatantly designed to circumvent Roe v Wade and tacitly close all but seven of Texas’ few remaining family planning clinics still offering abortion services. So far, so good.

But then the court decided that while it considers that important question, it will allow the law to go into effect. The result will be the closure of those clinics. Even if this court or a higher court overturns the state law — as seems inevitable barring an overturning of Roe v Wade — the clinics will be gone.

The normal expectation when the court is considering the constitutionality of a law that changes existing behaviors or rules or standards is to hold the law in abeyance while the appeal is resolved. But not in the case of these knuckle-draggers from the Old South.

I am literally flabbergasted. As the AP wire story on the ruling said:

Allowing to go forward the rules on hospital-level upgrades — including mandatory operating rooms and air filtration systems — would shutter more than a dozen clinics across Texas. It means only abortion facilities will remain open in the Houston, Austin, San Antonio and the Dallas-Fort Worth areas.

None will be left along the Texas-Mexico border or outside any of the state’s largest urban areas.

In other words, foes of a woman’s right to choose will have won even if the law is ultimately overturned. The panel of the 5th Circuit that issued that ruling should be impeached, not for this ruling so much as for demonstrating a complete and callous disregard for the consequences of its rulings.

Is the Fourth Amendment Dead on the Net? Is Expectation of Privacy “Reasonable”?

The Fourth Amendment only protects you against searches that violate your reasonable expectation of privacy. A reasonable expectation of privacy exists if 1) you actually expect privacy, and 2) your expectation is one that society as a whole would think is legitimate.

So says the Electronic Frontier Foundation (EFF) on the Web page on its site discussing the Surveillance Self-Defense Project. That’s an accurate summary of the law as it’s been interpreted over the years by the courts in the United States. Famously, e.g., courts have ruled that prison inmates have no reasonable expectation of privacy; they should assume they are under constant surveillance.

So the question that arises for me is whether anyone in the world today has a “reasonable” expectation of privacy in Internet communications. And I sadly conclude that, as much as we might like to claim it and as hard as we’d fight for it if it weren’t too late, it is in fact too late. This means that any communication you have that involves the Internet, however seemingly tangentially, should be governed by the principle that if you don’t want everyone to know about it and see it, don’t do it on the Net.

I am expecting that conservative courts — and this regrettably includes a highly partisan Supreme Court — will soon begin chipping away at the expectation of privacy that many us pretend we have as they conclude that such expectation does not meet the reasonable clause of the freedom as understood by those courts.

And then all hell will break loose.


The Difference Between “Arrested” and “Charged” and “Convicted” Seems Too Subtle for Media, Some Observers

The controversy in professional sports over how million-dollar athletes who abuse their partners are treated took a bit of a bizarre twist on Thursday night when MSNBC’s Rachel Maddow, who knows better, lumped 49er Ray McDonald into the discussion along with Ray Rice and other athletes involved in such acts recently.

Ray Rice has been convicted. He is guilty of the crime. He needs to be dealt with as a criminal. A two-game suspension is undoubtedly too light a punishment; the NFL admits it screwed that one up. (And the screw-up is almost certainly part of a bigger picture of deliberate eye-winking and elbow-nudging that has gone on for far too long.)

49ers Ray McDonald - Not Even Charged!

49ers Ray McDonald – Not Even Charged!

But — and this is a huge but — the difference is that McDonald hasn’t been convicted. In fact, he hasn’t even been charged. So far, he’s only been arrested and released on bond. He has a court hearing scheduled. Here’s where our nation’s well-known (and, I thought apparently naively, well-understood) rule of law — that one is innocent until proven guilty (i.e., convicted) — comes into play. To punish McDonald at this point would be the very definition of injustice. He has been arrested “on suspicion” of committing a crime. But you can’t be convicted on “suspicion.” The authorities must prove beyond a reasonable doubt that a crime has been committed and that you committed it. Period. End of discussion.

If the DA in Santa Clara County had the evidence, he could charge McDonald with a specific crime. In the face of formal charges, the Niners and the NFL might be justified taking some temporary action. (Although even then, he’s still presumed innocent. Depending on how overwhelming the evidence appears and how egregious the offense, the league or the team might be justified in acting, but I would argue would still be premature.) But until the man is convicted, he is innocent. As such, he’s entitled to keep his freedom and his job.

This is not rocket science, folks. Just because a crime is outrageous or egregious or offensive doesn’t lend it any additional power to punish in the absence of proof of its commission. You may not like that. Until the first time you’re unjustly accused. Then you’ll fall madly in love with this crucial provision of our legal system.

Supreme Court Relies on Garbage Facts in Making Crucial Rulings

supreme_court_bldgDid you know that the  U.S. Supreme Court — uniquely among all Federal courts — relies heavily on “friend of the court” briefs for facts it uses in determining its ruling in many controversial cases? Facts that are often hand-picked by those submitting the briefs to prove a point despite their demonstrable inaccuracy or unreliability? “Facts” that often are taken from studies done by the groups submitting them, never vetted by experts, published only on the Internet and written specifically to influence the Court on a particular case?

Neither did I until I read — and confirmed — this New York Times op-ed piece by the Times’ Supreme Court reporter, Adam Liptak. It has shaken to the foundations my previously firmly held belief that the Court, while its reasoning might be strongly influenced by politics in ways never envisioned by those who wrote and championed our nation’s founding, was at least dealing with objective, proven facts. After all, each justice has four full-time clerks who can investigate facts and the court rarely takes on more than 75 cases in a year. Do the math.

But the Court nonetheless accepts what are called amicus briefs from almost any interested party who wants to go to the time and expense to file one. These briefs have no real legal standing; justices are free simply to ignore them. In most lower court cases, the facts of the case are considered based on the record submitted, on evidence presented and vetted by the judge(s) or jury(ies) as a result of the adversarial process. Except in a judge-only trial, the jury is the determiner of facts of the case and the judge is the determiner of how the law should be applied to those facts. All the way through the appellate process, the rule is that appellants (and for that matter appellees) cannot introduce new facts without meeting rigorous requirements.

Not so with the Supremes. When a case comes before them, they can accept — and even solicit — amicus briefs from any interested (or not-so-interested) party they are willing to hear. And these briefs are often, it appears, places where new facts are introduced in an effort to sway the appellate process.

Now, given that the U.S. Supreme Court is the court of last resort, I can see where allowing the introduction of new facts into the process may be necessary or appropriate. But when they are, there must really be some way of vetting — of researching and confirming — these facts for accuracy and relevance.

In his excellent piece on the Times, Liptak cites numerous examples of cases which have turned on “facts” that were, at best, dubious.

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

Or this one:

In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

That “fact” was cited in an amicus brief but it was not accompanied by any citation.daniel_patrick_moynihanAs Daniel Patrick Moynihan famously said, “You are entitled to your opinion. But you are not entitled to your own facts.” And yet, according to Liptak, SCOTUS time and time again relies on undocumented, unproven and baldly asserted facts from dubious and often untraceable sources. (Liptak cites one amicus brief which cited a fact which was based only on a blog post from a blog that had been discontinued.)

It is difficult to project the best and most effective way of preventing this unbelievable tampering with the system of justice in our nation’s highest court. But what is demonstrably provable is that failing to do so will greatly weaken the public’s confidence in the Court, which now “enjoys” only a 35% favorability rating.

(I’m sort of hoping the Court will see this blog cited in an amicus brief and not recognize that: (a) the “fact” that this behavior will greatly weaken the public’s confidence in the Court, and that it is actually its disapproval rating that is at 35%; it actually quite mysteriously enjoys a 56% favorability rating in the last poll I could find.)



Why Electing Judges is Such a Horrible Idea

Professor Jessica Levinson, in an op-ed at the LA Times yesterday, nails the reason that the popular election of judges is such a horrendous idea.

State judges, even at the Supreme Court level, who must stand for election are forced to accept endorsements and contributions from people who will very likely end up in front of them for a judicial ruling at some point. We can’t even get lobbyist-influenced legislators and executives to be honest about how they vote in such situations, let alone objective. How in the world do we expect judges to do so?

Prof. Levinson also makes a really important point about the difference between legislators and jurists:

Some may say that this system is similar to the one for political candidates, but it is not. Members of the legislative and executive branches rarely make decisions on their own. They must convince colleagues. Judges must convince only themselves.

What she said.

NSA Parody Artist Hangs in, Wins Copyright Battle

nsa_satireParody artist Dan McCall has emerged victorious from a three-year battle with the National Security Administration (NSA) over a copyright violation they filed against him for a parody of their logo and motto.

I was so glad to see McCall hang in there for so long against a relentlessly stoic machine that wanted to curb his First Amendment rights as well as his reliance on the so-called “Fair Use” copyright doctrine to defend his right to publish his quite humorous parody. All too often, artists and journalists knuckle under to the government’s absolutely wrong-headed efforts to curtail commentary and satire out of some false sense of self-importance.

Kudos to Mr. McCall. And, by the way, great logo!


In What Ways is DNA Not Like a Fingerprint? Supremes Don’t Know

The Supreme Court today issued a ruling that allows police departments across the country to require DNA samples from anyone they arrest for a “serious crime,” in the process likening DNA to fingerprints. Still further proof of the Supremes’ lack of intellectual sophistication outside the boundaries of their studied specialty.
fingerprintFingerprints can be used for one purpose and one purpose only: to identify an individual.

DNA can also be used to identify an individual. But DNA can also be used to retrieve a ton of data that really should be private, or at least protected from the prying eyes of government. These things include:

  • disease markers
  • clues to parentage
  • race
  • susceptibility to specific diseases

dnaThere are many others, but this list by itself should have been enough for the SCOTUS to figure out that DNA and fingerprints are not even close to being in the same category. I’m not arguing with the ruling itself and if there were a way to limit police and governmental use of DNA to identification only, I probably wouldn’t have much objection. But to equate the two forms of ID is to blithely dismiss the real and important differences between the two. DNA can be used as a weapon against a person; fingerprints cannot.


I Wonder if These Anti-Freedom Companies Have Thought This Through?

A story that moved across the AP wire this morning reports that a company in Oklahoma City has appealed a lower-court federal ruling that it could not be exempted from a national mandate that all companies except religious organizations must provide health insurance that includes coverage for contraception. The company is Hobby Lobby and it is apparently owned by a family of Evangelical Christians who find abortion and some kinds of conception immoral.

The company is a privately held corporation but corporations are not eligible to allege that they hold any beliefs. Their owners and founders, of course, may do so.  But the corporation? Nope.

But here comes the Green family trying to convince a federal court that these behaviors that it finds immoral should not be mandatorily covered by insurance plans offered to employees. They are, in effect, asking the court to determine that the company can be thought of as having the beliefs of its owners.

But I don’t think they’ve thought this through very well. If they succeed, it seems to me they will have run a huge risk of “piercing the corporate veil.” This principle says that the owners and managers of a corporation cannot generally be held individually liable for acts of the company, its employees or contractors. The existence of this shield is one of the primary reasons people form corporations.

But if the corporation’s veil of protection can be pierced to avoid insurance coverage, then it seems to me that the owners have thereby admitted that the corporation is nothing more than a proxy for them as individuals and, therefore, they are individually liable for its acts.

I’m no lawyer, but that seems to be a reasonable understanding of the law as I do understand it.

(I’m refraining from commenting on the case itself beyond saying that I think the original court ruled correctly.)