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Checks & Balances
By Emily Berman – 08/01/08
For an Administration that has spilled gallons of ink in efforts to justify its extreme pro-Executive views, the Bush White House sure has fared poorly in court.
In the last five years, the Supreme Court alone has rejected as contrary to law the Executive's position on the scope of jurisdiction of the federal courts (it does, in fact, reach to Guantanamo Bay); the rights possessed by citizen and non-citizen detainees (they are both, in fact, entitled to habeas corpus); and the President's authority to unilaterally try and punish so-called "enemy combatants" (military commissions must, in fact, be sanctioned by an act of Congress). And if the Executive had not so aggressively used the state secrets privilege to keep courts from ruling on its warrantless surveillance program, "enhanced interrogation" tactics, and extraordinary rendition, who knows how many more defeats it would have suffered at the hands of Lady Justice.
The Administration must heed the lesson that courts have been trying to impart: The time has come for cooler heads to prevail, for conciliation to take precedence over litigation, and for the Executive to work with the Congress to remedy the harms done—to our country and to our constitutional structure. Thursday's decision from a federal court in the District of Columbia may provide just such an opportunity.
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Tags: Justice, Liberty & National Security, Checks & Balances
By Barry Siegel – 07/14/08
This is getting to be a maddeningly familiar story:
Plaintiffs file a lawsuit; the federal government intervenes, asserting the
state secrets privilege; a judge promptly rolls over, granting a motion to
dismiss without looking at the evidence. This case of the five "extraordinary
rendition" victims seeking redress against a Boeing subsidiary for flight
services provided to the CIA (Mohamed v.
Jeppesen Dataplan, Inc.) is only the latest. Before the defendant filed an answer, before discovery began or
anyone presented evidence, a federal district judge ruled that "proceeding with
this case would jeopardize national security and foreign relations." Even
though the CIA's rendition program was hardly a black box, the judge thought "the
issues involved are non-justiciable because the very subject matter of the case
is a state secret."
This time, at least, effective objections are being raised
against such an abject abdication of judicial responsibility. The ACLU (lead counsel
for the plaintiffs) has filed a comprehensive appeal to the 9th
Circuit, and the Brennan
Center on July 10 weighed
in with a compelling amicus brief. Much is at stake in their arguments. The executive branch's overbroad claim of
privilege, coupled with the judiciary's reflexive deference, endanger not only
the plaintiffs' rights, but also the critical balance of powers envisioned by
this country's founders.
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Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Thaddeus Kromelis – 07/09/08
Both
Firedoglake and
CBoldt appear to be on top of covering today's vote.
CQ Politics has an opinion piece on the bill. The
Washington Post also appears to be particularly active,
explaining their position after receiving letters from the ACLU as well as Sen. Feingold (D-WI). This after the following full-page ad to the right from
Firedoglake graced their pages
.
Tags: Justice, Liberty & National Security, Checks & Balances
By Emily Berman – 06/23/08
The issues were preliminary and the result of any ruling likely to be. But despite its preliminary nature, a simple Monday morning hearing in the D.C. District Court had the feeling of something much more. Perhaps it was the last-minute change of venue to the District of Columbia's ceremonial courtroom in order to accommodate the larger-than-usual expected crowds. Maybe it was the presence of House Judiciary Committee Chairman Representative John Conyers at the Plaintiff's counsel's table and White House Counsel Fred Fielding on the Defendants' side. Or it could have been the momentous constitutional ramification that flow from any ruling in the case.
Whatever it was, the argument in preliminary motions in the House of Representatives Judiciary Committee's suit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to enforce congressional subpoenas issued in the course of the Committee's investigation into the controversial firings of several U.S. Attorneys in late 2006 was not the court's usual Monday morning fare.
And Judge John D. Bates, the presiding judge, at times seemed to wish he was anywhere other than in a position requiring him to reach a ruling on the issues before him. "I didn't volunteer for this," he reminded the parties at one point.
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Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By R. Patrick Wyllie – 06/12/08
Today, the Supreme Court's decision in
Boumediene v. Bush was a clear rebuke of the Administration's attempt to deny Guantanamo detainees' basic rights. Another decision, in
Munaf v. Geren, upheld the Administration's view that the U.S. government cannot interfere with foreign criminal proceedings, even if foreign detention may result in the torture or death of an American citizen.
Together, these cases present some of the questions facing the U.S. as it moves towards a new post-Bush era detention policy. But without the facts, you can't answer the questions, so here you go:
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Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus
By Thaddeus Kromelis – 06/12/08
Just some bits regarding the Boumediene & Omar and Munaf decisions...
Emily Bazelon, senior editor of Slate Magazine, talks about this morning's Supreme Court decision granting habeas rights to Guantánamo Bay detainees on WNYC's Brian Lehrer Show.
Link here if you can't stream audio...
SCOTUS blog reaction to Boumediene can be found here.
A good report from Nina Totenberg on "the end of Guantanamo as we know it" for NPR's All Things Considered here.
David Stout in the NY Times.
Here's the Washington Post's afternoon story by Robert Barnes and Dan Eggen, includes AP video.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus
By R. Patrick Wyllie – 06/02/08
It is unclear whether the White House believed that claiming
executive privilege would provide them with fail-proof protection from divulging
information it would prefer to keep confidential, or if they really believe all
presidential communications are privileged—but it seems as though they've
put all their valuable legal eggs into this one, increasingly fragile basket.
Unfortunately for the Bush Administration, this basket has been
woven from weak strands of legal theory which are unlikely to hold up upon
closer inspection.
Last week, the House Judiciary Committee challenged Justice
Department lawyers' efforts to throw out of court the Committee's civil lawsuit
against former White House Counsel Harriet Miers and White House Chief of Staff
Joshua Bolten. Allegedly, these two White House employees have crucial
information regarding the forced resignations of a number of U.S. Attorneys who
were not, as Ms. Miers once said, "loyal
Bushies."
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Tags: Justice, Liberty & National Security, Checks & Balances
By Emily Berman – 05/30/08
Cross-posted from The New Republic.
Last week's report by the Justice Department's Inspector General reveals that working in the Bush Administration really does mean never having to say you're sorry—or, indeed, anything else you don't want to for that matter. And this applies even when it's your executive branch colleagues who are trying to get you to talk.
The Justice Department's inspector general Glenn A. Fine has issued a thorough and unblinking report about the concerns FBI agents had about the harsh interrogation tactics, possibly rising to the level of torture, that were being used on detainees in Afghanistan, Iraq, and Guantanamo. These were concerns, Fine discovered, that were systematically ignored and discounted by cabinet members and other political appointees. Conspicuously absent from Fine's 437-page opus, however, is any input from one of the most important of those political appointees: former Justice Department leader John Ashcroft. The phrase "Attorney General Ashcroft declined to be interviewed for this review" or its equivalent appears repeatedly throughout the report—often followed by an indication that the report is necessarily incomplete because of it. For instance, due to Ashcroft's absence, we don't know which agency or individual made the decisions regarding what interrogation tactics would be used on specific detainees; whether Ashcroft himself objected to the use of any particular tactics; when he first became aware of his subordinates' concerns; or whether he conveyed those concerns to high-level officials outside the Justice Department and, if so, how those officials responded.
Read entire piece here...
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
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