Blog
By Kimberly Lubrano – 08/12/11
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
Maine's election laws were left unchanged yesterday after an Appeals Court in Boston denied the National Organization for Marriage's challenge to PAC disclosure requirements.
How to deal with detainees when captured? The Obama administration has yet to provide an appropriate set of guidelines for the captured terror suspects. Without these rules, mistreatment will continue to be ignored.
A judge allowed 15 individual intervenors to defend a prison redistricting law in New York. Wendy Weiser provided analysis for Reuters, saying "we want to make sure that this law is adequately defended by people who have a stake in the matter and care to ensure that New Yorkers' voting rights aren't unfairly distorted."
Now that the supercommittee members have been selected, Vermont Senator Patrick Leahy and 25 groups sent a letter urging transparency and accountability in the upcoming negotiations.
Former Federal Election Commissioner Bradley Smith writes on shareholder disclosure and questions why contributions to museums and charities are not being questioned as well.
Think Progress: "During a campaign stop at the Iowa State Fair yesterday, former Massachusetts Gov. Mitt Romney (R) vociferously defended tax breaks for corporations by declaring that corporations are people."
Tags: What We're Reading Today
By Kimberly Lubrano – 08/11/11
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
Common Cause's Bob Edgar writes on the Supreme Court equating money and speech and suggests how voters can fix the mistake made in Citizens United.
A former Legal Services Corporation attorney explains why legal aid services are vital in this ecomonic climate.
Some GOP leaders feel they are losing control of Republican activists. Will outside groups spend more than the GOP in 2012?
"Foreclosure filings dropped once again in July, hitting their lowest level since November 2007, as processing delays and foreclosure prevention measures enabled a larger number of delinquent borrowers to remain in their homes" - CNN Money
The story of American-born Anwar al-Awlaki, fact or fiction?
Tags: What We're Reading Today
By Kimberly Lubrano – 08/10/11
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
Mimi Marziani, counsel at the Brennan Center, writes an opinion piece for Politico on the need for "super accountability" on the newly created "super committee."
"What's up with Wisconsin?" Erik Opsal, communications coordinator at the Brennan Center, writes his thoughts on the Wisconsin recall elections, the new Voter ID bill, and hidden political contributions.
Peter Zimroth of Arnold & Porter writes a personal account of why his pro bono work on behalf of the Al Falah Center is meaningful.
The Center for American Progress provide some stats on why we need more funding for civil legal aid programs.
A White House official says "the president is committed to improving our federal contracting system, making it more tansparent and more accountable." President Obama is still reviewing an executive order that would make it mandatory to disclose political contributions made by federal contractors.
A Georgia congressman introduced a bill to repeal the Legal Services Corporation Act. See Dana Milbank's op-ed in The Washington Post.
Super PACs and the 2012 presidential election, have these fundraising committees changed the playing field for political contributions? Politico's Kenneth Vogel reports.
The New York Times says shareholders have a right to know who and how much their companies are spending on political campaigns. Legal scholars petitioned the S.E.C. last week demanding this kind of disclosure.
The U.S. Department of Justice granted "pre-clearance" to provisions of Florida's new elections law. This included three cited provisions from a letter on minority voters written by the Brennan Center, The League of Women Voters of Florida, Democracia USA, and the Lawyers' Committee for Civil Rights Under Law.
Tags: What We're Reading Today
By Emily Berman & Jonathan Hafetz – 08/10/11
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Warsame case, and whether we can hold the government accountable for deprivations of liberty.
This is the second installment in a three-part series. You can read the first conversation here.
Hafetz is the author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. You can read the chapter Terrorism as Crime.
There was a fascinating story in The Nation last month, reporting about a facility in Mogadishu, Somalia, where the CIA seems to be operating a semi-autonomous detention program in conjunction with Somali intelligence. According to The Nation, “the underground prison is officially run” by the Somali’s national security agency, but “US intelligence personnel pay the salaries of [Somali] intelligence agents and also directly interrogate prisoners.”
Is there any way to hold the government accountable for these deprivations of liberty?
One question these last two stories raise for me — and I’ll want to come back to this — is whether the current administration has a coherent detention policy, or if it’s operating on an ad hoc basis, and whether that’s a good or a bad thing.
But first, I’d like to ask you whether the writ of habeas corpus provides any protection from unlawful detention for prisoners like Ahmed Abdulkadir Warsame or the ones in Mogadishu? And if not, is there any way to hold the government accountable for these deprivations of liberty?
--Emily Berman
The facility highlights the problem of proxy detention — where the U.S. outsources detention to foreign agents or colludes with those agents in order to minimize accountability.
The practice of proxy detention is not new. (In fact, along with the ACLU, I presently represent a U.S. citizen named Amir Meshal in a lawsuit against four U.S. officials who used foreign agents in Kenya, Somalia, and Ethiopia, to imprison him for four months in 2007 without access to his family or the courts).
The story about the facility in Mogadishu highlights both the importance and potential limits of habeas corpus. It underscores why habeas must be available to challenge all detentions by the United States, regardless of location, and why the habeas right must be viewed broadly to reach situations where the U.S. exercises custody or control over a prisoner indirectly, through a foreign agent.
Obama's approach elevates executive discretion over the rule of law.
A district judge in Washington, D.C. previously construed habeas corpus to reach this type of detention (The case, which involved a proxy detention in Saudi Arabia, is entitled Abu Ali v. Ashcroft). While Abu Ali was an American citizen, the habeas right to challenge illegal detention should extend both to citizens and foreign nationals. Indeed, the Supreme Court's 2008 Boumediene v. Bush decision, which recognized Guantanamo detainees' constitutional right to habeas corpus, emphasizes that citizenship is only one of many factors involved in determining whether habeas should be available to a person held overseas.
One recurring problem is that it can be difficult in practice to establish the requisite level of U.S. control over detention for the purposes of establishing habeas corpus jurisdiction, while judges can be reluctant to order discovery into the degree of U.S. control when a prisoner is nominally in foreign custody. However, the danger of precluding such discovery outweighs any difficulties it poses, as it effectively permits the U.S. to interrogate and imprison individuals without accountability or review — precisely the kind of situation where the worst abuses tend to occur.
--Jonathan Hafetz
I want to briefly go back to the Warsame case — the Somali detainee held and interrogated for two months on a navy ship and then brought to the U.S. for prosecution. You’ve probably seen the letter that several congressional Republicans sent to President Obama protesting the way that Warsame was handled. The letter criticizes the President for failing to establish a “comprehensive detention system” outside of Afghanistan and calls on the President to define his administration’s policies on interrogation, detention, and prosecution of terrorists.
Do you think this administration has a coherent policy for dealing with suspected terrorists?
--Berman
President Obama's approach to detention does, to be sure, suffer from a lack of consistency. While Obama has expressed a general preference for prosecuting terrorism cases in federal court, he has maintained the option to treat terrorism suspects militarily — by subjecting them to indefinite detention under the laws of war or prosecuting them in military commissions. In Warsame's case, exercising that option meant two months' of military detention followed by a federal criminal indictment. For others, including those at Guantanamo, it has meant perpetual confinement without trial or prosecutions in a second-class military justice system.
Obama's approach, as I've previously discussed here, gives far too much power to the government to circumvent or dispense with the fundamental constitutional protections provided in the federal criminal justice system. Who receives a federal trial? Who, by contrast, is subjected to the military regime of law-of-war detention or commission prosecution? Obama's approach allows the government to exercise the military option when it lacks evidence, when the evidence is tainted (for example, because it was obtained through torture or other illicit means), or even when the case is too difficult politically to prosecute in federal court (as illustrated by the administration's decision to abandon the prosecution of KSM and the other 9/11 co-conspirators in the face of a virulent political backlash).
Obama's approach, in short, elevates executive discretion over the rule of law. It is, however, certainly preferable to the approach of those lawmakers who would mandate military detention, thus barring the prosecution of Warsame and countless other suspects.
--Hafetz
Tags: Liberty & National Security, Checks & Balances, Detainee Policy, Transparency & Accountability
By Elizabeth Kennedy – 08/09/11
Crossposted at Huffington Post.
Stanley Greenberg recently described the current crisis of government legitimacy. He wrote that "the nexus of money and power, greased by special interest lobbyists and large campaign donations" means that "the game is rigged" and "the wealthy and big industries get policies that reinforce their advantage." He quotes voters who say "we don't have a representative government anymore." Considering the federal government's recent performance, and with Congress's disapproval rating at an all time high of 82 percent, it's a legitimate critique.
The major justification for laws governing the financing of political campaigns is that they will prevent "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." Unfortunately, a real roadblock to comprehensive reform is the constrained, impoverished view of corruption articulated by the Supreme Court's conservative majority. They have disavowed the Court's prior understanding of the corrosive and distorting effects of immense aggregations of wealth on a democracy
The idea that money can have deleterious influences on elections, even outside the context of bribery, goes back more than a century. The Supreme Court recognized this in McConnell v. FEC, when it found that corruption of government is "not confined to bribery of public officials, but extend[s] to the broader threat from politicians too compliant with the wishes of large contributors." The possibility that legislators will "decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder" is a more subtle form of corruption than straight quid pro quo transactions, but is "equally dispiriting." And in FEC v. Beaumont, the case upholding the ban on direct corporate contributions to candidates, the Court expressed concern that corporations would "use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace."
Money in politics leads to corruption of government not only when a quid pro quo arrangement between a campaign contribution and favorable political treatment exists. The special access and undue influence awarded to those who have financial resources to support or oppose a representative's re-election are themselves a form of democratic corruption. It leads to the rampant cynicism and civic disengagement when voters conclude that "there's just such a control of government by the wealthy that whatever happens, it's not working for all the people; it's working for a few of the people."
Regrettably, in Citizens United the Court expressly found that "the appearance of influence or access . . . will not cause the electorate to lose faith in our democracy." As evidenced by Mr. Greenberg's research, the public has a more realistic understanding than the Supreme Court of the corruption that results from campaign finance policies that allow large amounts of money to dominate elections in a democracy. The American people understand that who pays the piper calls the tune, and don't care about the formalistic distinctions that run through campaign finance jurisprudence.
The Supreme Court has moved far away from a holistic view of what corruption of a representative government looks like. In another case decided this year, Nevada Commission on Ethics v. Carrigan, Justice Scalia discussed the motivations that induce a legislator to vote one way or another, and equated a legislator voting according to his best judgment, voting against his best judgment but in the interest of his constituents, and voting against his best judgment but in the interest of his contributors. Only the first two are democratically legitimate considerations when determining the public policy of our country — the last is a perversion of our democracy to benefit the wealthy and elite.
There are several proposals to increase transparency and accountability for money in politics. The Fair Elections Now Act would enact public financing of Congressional campaigns to break the stranglehold of special interest money. This would increase the amount of political speech available to voters, allow candidates to spend more time reaching out to voters and addressing their concerns, and supercharge the power of small donors. The draft Executive Order on disclosure of political spending by government contractors would shine a light into back-rooms and discourage political favoritism when spending taxpayer money. The Shareholder Protection Act would require companies to get permission from their shareholders and disclose the money they spend to influence elections. The 2012 elections are expected to be the most expensive ever, and awash in the secret spending should our leaders fail to enact reforms.
During the debate on the debt ceiling, polls showed that most Americans, including a majority of Republicans, were in favor of taking a balanced approach and raising revenue by closing loopholes that benefit the wealthiest Americans and special interests. And yet, once again, the result from Washington did not reflect the people's preferred policy solution. Our government is not serving their interests, and it is a democratic shame.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Kimberly Lubrano – 08/09/11
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
The American Bar Association passed new rules for judicial disqualification yesterday, which are consistent with two Brennan Center recommendations. Senior Counsel Adam Skaggs provided analysis for Reuters and The National Law Journal.
The date is set for August 16th. Who will be the twelve candidates selected for the deficit-reduction panel, or "Super Committee"? The Washington Post details those in the running.
"Lobbyists are scurrying to figure out how to influence the new super committee that will recommend cuts in the budget deficit." The National Journal highlights how lobbyists will look to shape the debate.
Legal aid cuts continue their domino effect in the states. Legal Aid of North Carolina suffered $2 million in budget cuts, leading to layoffs and the closing of three offices.
The D.C. Appeals Court upheld a ban on foreign political contributions after two Canadians filed suit against the Federal Election Commission.
A U.S. Court of Appeals held that a lawsuit against former Defense Secretary Donald Rumsfeld will proceed based on the "use of torture" and "harsh interrogation techniques" that were used by U.S. military forces under his supervision. Slate's Dahlia Lithwick provides this analysis.
Tags: What We're Reading Today
By Maria da Silva – 08/08/11
The American Bar Association (ABA) House of Delegates approved a judicial disqualification resolution today. The resolution urges states to establish clear procedures for dealing with judicial disqualification and calls for greater transparency of campaign spending in judicial races. The Brennan Center applauds the ABA’s for its leadership on judicial recusal and for taking this historic action.
The Brennan Center has consistently advocated for clear and comprehensive disqualification rules. We previously documented the threats that costly, negative, and special interest funded judicial election campaigns present to a fair and impartial judiciary. Indeed, numerous public opinion polls report that Americans are concerned about judicial neutrality in light of the ever increasing incursion of cash in the courtroom—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.
Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending. In 2009, the U.S. Supreme Court recognized in Caperton v. Massey that there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor. The Court also noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires. Nonetheless, more than two years after the landmark judicial disqualification decision, states have failed to implement meaningful reform.
We hope that states will heed the ABA’s suggestions. We are pleased the ABA’s judicial recusal guidelines closely follow the proposals outlined in our study of state action on judicial recusal: Promoting Fair and Impartial Courts through Recusal Reform.
As special interest spending in judicial elections continues to escalate, states must respond to the ABA’s resolution and develop new standards and procedures for judicial disqualification and related disclosure in order to preserve the fairness and impartiality of the judiciary.
Tags: Democracy, Fair Courts, State Judicial Elections, Disclosure
By Erik Opsal – 08/08/11
Crossposted at WisOpinion.
What’s up with Wisconsin? I’m surprised when I hear that question, seeing as I now live in New York City. As a former Badger, people outside of the state think I have special insight into the mind of Wisconsin’s political class. But just like all of you, I’m dumbfounded.
The past six months have been quite entertaining. Weeks of protests at the state Capitol, a multi-million dollar Supreme Court election and recount, a polarizing drive for a Voter ID bill, and now a series of recall elections that have brought in millions of dollars from outside interest groups. To the rest of the country, Wisconsin is a mad, mad world.
"This is so out of whack from everything we've ever seen,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign, in an interview with Mother Jones about the recall elections. Approximately $3.75 million was spent on legislative races in 2010. For Tuesday's recalls, more than $30 million has already poured in, according to McCabe, and that number is likely to rise.
It’s not the candidates spending all this money—it’s outside interest groups, fighting a proxy war over collective bargaining rights, who are keeping voters in the dark. The Supreme Court’s Citizens United decision is largely to blame for this deluge of hidden spending. That decision, and others, opened the floodgates for corporations and unions to spend at will and obscure that spending through so-called “Super PACs.” Without proper laws to bring this spending out of the dark, Wisconsinites don’t know who is trying to sway their vote.
At the same time voters get blasted with outside TV ads, the new Voter ID bill makes it harder for them to vote.
In my four years at UW-Madison, I lived at four different addresses. Each time, I registered at the polls by bringing my proof of residency (a utility bill) and nothing more. I wasn’t trying to subvert the system. I voted in state elections, city elections, and county elections. I even moderated a debate between two County Board candidates. I wasn’t one of these students who came from out of state and voted in Wisconsin without knowing who I was voting for, as some Voter ID advocates claim. I truly engaged with Wisconsin politics.
If I had to get a new driver’s license every time I changed my address, as I would under the current Voter ID bill, would I have been so involved? Probably. But it represents an unnecessary obstacle to voting—the bedrock of our democracy—and one that many Wisconsinites might not choose to overcome, especially the poor or the elderly, who might find it hard to get to the DMV.
This kind of Voter ID requirement disproportionately affects the elderly, minorities, and students. According to a 2005 UW-Milwaukee study, 23 percent of voters over the age of 65 do not have a photo ID, 70 percent of whom are women. Statewide, 55 percent of African American males and 49 percent of African American females do not have a photo ID, compared to 17 percent of white males and females. And for students living in the UWM, Marquette, and UW-Madison dorms, just 3 percent had a photo ID with their current address.
To be sure, we need to do everything we can to protect the integrity of our democracy, including guarding our elections from voter fraud. But modernizing voter registration and tightening election administration procedures furthers this goal much more than measures making it harder to vote.
Protecting this integrity not only requires easing Voter ID restrictions, but also passing new laws requiring disclosure of political spending. After jumping through hoops just to be able to vote, the least we can do for Wisconsin voters is reveal who is spending millions to influence their decision. Without that, the country will be left asking, what’s up with Wisconsin?
Tags: Democracy, Campaign Finance Reform, Disclosure, Voting Rights & Elections, Student Voting, Voter ID
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