Blog
Checks & Balances
By Thaddeus Kromelis – 05/23/08
Yesterday, attempting to get to the bottom of the alleged politicization of the Department of Justice under the Bush Administration—and an investigation of Alabama Governor Don Siegelman (D) specifically—Rep. John Conyers (D-MI) issued a subpoena to former White House Deputy Chief of Staff Karl Rove.
According to CNN, the subpoena had been authorized earlier but was only delivered yesterday after "The Architect" conveyed through his lawyer he would not appear voluntarily. Not surprisingly, the lawyer also stated Rove must honor White House orders not to testify. Read Conyers' cover letter for yourself here.
Tags: Justice, Liberty & National Security, Checks & Balances
By Eric Lane – 05/19/08
News that Governor David Paterson has authorized Attorney General Andrew Cuomo to conduct a full-blown investigation into "political interference" by the New York State police is welcomed. Nothing can be more damaging to our democratic political system nor to our law enforcement agencies than harnessing them to influence political outcomes. Think Robert Kennedy, Martin Luther King and the FBI. Think Richard Nixon, Watergate, and the FBI. Cuomo hits the constitutional nail on the head when he observes that "combining politics and police work is a toxic brew." This toxic brew, in fact, is the drink of authoritarian regimes intent on protecting their own power, rather than the democratic political system they swear to defend.
But police interference in politics is not new to New York State. Just over thirty years ago I served as Counsel to the New York State Assembly Task Force on State Police Non-Criminal Files. The task force was established after a newly appointed State Police Superintendent, William Connelie, reported in 1975 that the state police had collected and maintained information on a broad array of what they characterized as "non criminal" individuals and groups. In fact, according to the Task Force Report, these files numbered in the hundreds of thousand. And within in them were well over 600,000 entries. Most of the files dealing with groups or organizations consisted of reports on "meetings, demonstration or planned activities." But the focus often was on ideas. According to the Report, "the Police appeared concerned with any individual or group which was likely to speak publicly...and espouse ideas which challenged the status quo." Ideas seemed to be seen as a precursor to criminal conduct—a "thought crime" if you will—and their proponents as potential criminals. Many individual files also contained personal information such as records of credit checks, and of conversations with employers, neighbors, professors, local government officials and bank officers.
Read the rest of this story ...
Tags: Justice, NY Reform, Checks & Balances, Domestic Counterterrorism
By Mike Webb – 04/21/08
Welcome to the first-ever Brennan Center
pop quiz. Since each week brings more
depressing news of torture, executive privilege, government spying, etc., we
thought we'd share this test. If you've
read the Brennan Center's "12
Steps To Restore Checks and Balances"—which offers remedies for an
out-of-control executive—then you're virtually assured of an A+.
As most of you know, the first step toward ending an
out-of-control executive is public awareness. So give this quiz to a friend and see if they're doing their job. Are you?
Question 1
- Last week, ABC News reported on the
"Principals Committee" meetings in which White House officials decided
which intero..... (oh heck, let's just call it what it is)...torture techniques
could be used. Who were the members of
the committee?
- A) Dick
Cheney
- B) Donald
Rumsfeld
- C) John
Ashcroft
- D) Condoleeza
Rice
- E) All
of the above
For extra credit, tell us which step of the 12 Steps plan
would remedy this kind of situation?
Question 2
- According to the New York Times, the Office of Legal Counsel issued memos
that wrongly claim that the President's "wartime powers largely exempted
interrogators from laws banning harsh treatment"? Who wrote the memos?
- A) William
J. Brennan, Jr.
- B) Dahlia
Lithwick
- C) John
Yoo
- D) "Jack"
McCoy
- E) All
of the above
Question 3
- Earlier this month, the Associated Press noted, "President Bush's refusal to
let two confidants provide information to Congress about fired federal
prosecutors represents the
most expansive view of executive privilege since Watergate." Who are the two confidants claiming executive
privilege?
- A) Harriet
Miers
- B) John
Mitchell
- C) Joshua
Bolten
- D) Linda
Tripp
- E) All
of the above
Question 4
- A
recent op-ed in the Los Angeles Times
argues that we need to do more to protect Americans' right to habeas
corpus. However, the U.S. government
disagrees and would deny habeas protection to which group of people?
- A) American
citizens
- B) Americans
detained abroad and subject to death and torture
- C) Foreign
nationals who have not been charged with a crime
- D) An
MA candidate in computer science at Bradley
University in Peoria, IL
- E) All
of the above
Question 5
- The New York Times reported on the existence
of CIA
and D.O.D. "harsh" interrogation tapes that show detainees being tortured. Nonetheless, which current and former U.S. officials insisted "the US does not
torture?"
- A) George
W. Bush
- B) Dick
Cheney
- C) Condoleeza
Rice
- D) George
Tenet
- E) All
of the above
Question 6
- The Washington Post reported on an
analysis of President Bush's use of signing statements. Which laws has he bypassed with signing statements?
- A) Postal
regulations that require the government to get a warrant before opening a
citizen's mail
- B) Whistle-blower
laws that provide job protection for federal workers who alert Congress to
government wrongdoing
- C) Laws
that stop the military from using information that isn't "lawfully
collected."
- D) Laws
that require the President to tell Congress when the executive branch decides
not to follow U.S.
laws
- E) Congress'
authority to limit abusive interrogation techniques
- F) All
of the above
And the answers are:
1) E
- all of the above. Step
4 of our "12 Steps...." plan calls on Congress to "make it clear: no more
torture, no more torture lite."
2) C
- John Yoo. Step
11 would reform the Office of Legal Counsel by insulating it from improper
White House influence and requiring maximum transparency for OLC legal
opinions.
3) A
& C - Harriet Miers and Joshua Bolten.
Step
7 urges Congress to regulate the use of executive privilege, particularly
in situations that may involve wrong-doing
within the executive branch.
4) E
- all of the above. Sigh. Step
5 demands the restoration of habeas corpus and would restore the federal
courts traditional authority to hear challenges to unlawful detentions.
5) E
- all of the above. Oooops. In addition
to "no torture," Step
9 would have Congress strengthen and review the reporting requirements
concerning national security and intelligence activities. Somehow, Jon Stewart found a
way to make this funny.
6) G
- all of the above. Step
2 calls on the presidential candidates to renounce the use of signing
statements to circumvent the law.
How'd you score?
*Special thanks to Susan Lehman and Patrick Wyllie for their
assistance with this.
Tags: Justice, Liberty & National Security, Checks & Balances
By Jonathan Hafetz – 04/15/08
Cross-posted from Slate
Even as criticism of Guantánamo mounts, Guantánamo's underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as "enemy combatants" al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health....
> Read entire post here
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 04/07/08
Cross-posted from Slate
John Yoo's recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo's memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo's ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as "enemy combatants" are the first casualties of Yoo's War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions' legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo's earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo's discredited assertion that the Bill of Rights does not apply to the president's conduct of the "war on terror" inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as "enemy combatants" even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt....
> Read entire Slate piece here.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 03/26/08
Cross-posted from The Hill Blog
In February and March this year, two bills on an obscure federal-court rule of evidence were introduced in the House and the Senate. This arcane corner of federal procedural law-the "state secrets" privilege-has far-reaching consequences. It is a cornerstone on which the "legacy" of the Bush Administration is now being built.
The "state secrets" privilege is used by the government to ask courts to exclude evidence that might disclose sensitive information about national security matters, and it impinges on the heart of the Constitution's system of separated powers: the relationship between the executive branch and the courts. From the early Stuart era, the Founders of the Constitution drew inspiration from English judges who had stood up to arbitrary or tyrannical uses of executive power.
This core idea of the judiciary as a check on executive authority, however, has waned in the glare of late twentieth-century security panics. In signal cases during the 1970s on wiretapping and executive privilege, the Court has left open inchoate "national security" exceptions to constitutional protections. Entering the post-9/11 era, therefore, the solidity of constitutional protections against executive predations on national security grounds remained uncertain....
Read the rest of the article at The Hill Blog.
Tags: Justice, Liberty & National Security, Checks & Balances
By Andrew Stengel – 02/27/08
Last
night's Democratic debate covered health care and the war in Iraq and jobs and the economy. In
other words, the NBC News moderators asked mostly the same questions as, well,
the 19 previous debates.
As is
customary, talking heads and the print media
proclaimed who won and lost. Opinions varied, but nobody named last night's
real loser: James Madison, the father of our Constitution
and champion of checks and balances.
The issue of presidential power, which is an unlikely answer to pollsters' endless
queries as to what is the most important issue in this election is actually
quite ubiquitous. Warrantless
surveillance. The Foreign Intelligence Surveillance Act (currently stalled in
the House). Retroactive immunity for telecomm companies. Justice Department investigations into
torture. Destruction of evidence
of torture. Presidential signing statements that flout the intent of Congress.
Indefinite detention. Trials for terror suspects under the Detainee Treatment
Act. Extraordinary rendition.
Connecting these dots illustrates a remarkable expansion of power in the executive branch
over the past eight years that runs afoul of the Constitution and James
Madison's intent. Yet, the issue has not
arisen—even once—in any of the 40 debates. (The Boston Globe's Charlie Savage
suggested a series of topical questions on the New York Times op-ed page on the
eve of the debate.)
The administration's
theory of presidential power surfaced long before G.W. Bush took office: in a
1987 congressional minority report on the Iran-Contra scandal. As articulated
by then Congressman Dick Cheney, and highlighted by the Brennan Center's Aziz
Huq in 12 Steps to Restore Checks and Balances, the report provided the foundation for the
current administration's theory of monarchial executive power,
which claims that the president can act like a king and override—or ignore—Congress.
Since
none of the moderators in any of the Presidential debates have raised questions
about our system of checks and balances and how we might best restore
Constitutional order, we're writing to each of the campaigns and to ask them to
answer the question printed below. We'll post responses we receive.
In
recent years and months, we've learned about warrantless surveillance, signing
statements that circumvent Congressional intent, indefinite detention of US
citizens, expanded claims of executive privilege, secret memos from the Office
of Legal Counsel that justified torture, and much more. Many people—including former members of Republican and Democratic administrations—see
these actions as an attack by the executive branch on constitutional checks and
balances, Congress and the courts. Do you believe that the presidency has
gained too much power? If so, as president, what specific steps would you take
to correct the imbalance?
Brennan Center's Senior Fellow Eric Lane
notes that, upon swearing in, the president places his—or her— hand on the Bible and
recites the Oath of Office, committing to:
support and defend
the Constitution of the United
States.
We deserve to know which George
the next president will resemble—Washington, or the King III.
Tags: Justice, Liberty & National Security, Checks & Balances
By Emily Berman – 02/14/08
If you watch Congress closely, you might have noticed that
they've been buying a lot of beachfront property in New Mexico over the last few years.
America
doesn't torture, President Bush emphatically declared in 2005. Except
for those three people that we subjected to waterboarding.
The 9/11 Commission was given all the information about the
treatment of detainees that they requested.
Except
those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.
We're not eliding our constitutional obligations to the
detainees in Guantanamo. Except that we have been denying them the long-established
right to habeas corpus, the right to see evidence offered against them, the
right to present evidence of their own to exonerate themselves.
We're not monitoring domestic communications without a
warrant in violation of long-standing law.
Except for the five years between September 11th and the time the
program was exposed
by the New York Times.
In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice. And yet it continues to take the bait-hook,
line, & sinker-either by taking no action at all or by enacting laws that
simply codify the Administration's flawed policies.
The latest in this long line of legislative travesties is
the recently-approved Senate version of a bill to amend the Foreign Intelligence
Surveillance Act (or FISA). The debate
over the measure was long, hard-fought, and characteristically full of outright
misinformation. Here are some examples:
- (1) "If
Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect. The Protect America Act, which eviscerated some
of FISA's civil liberties protections, expires Saturday. FISA, which has served America's
intelligence community well for over 30 years, remains on the books.
- (2) "If
telecommunications companies that cooperated with the administration's
warrantless wiretapping program are not extended retroactive immunity for any
violations of the law they committed, they will not cooperate with intelligence
operations in the future." False.
Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they! It is good public policy to discourage
telecoms from cooperating with illegal surveillance.
- (3) "Requiring
the intelligence community to get authorization for surveillance activity from
the Foreign Intelligence Surveillance Court (FISC) will impede government
efforts to stop terrorists."
Unsubstantiated. From the time it was established in 1979
until 2006, the FISC rejected exactly 5 applications from the executive. There's no reason to think that it would not
continue to approve valid surveillance requests if it is permitted to retain a
role in the approval process.
Instead of recognizing these
arguments for what they are-the politics of fear enlisted to further an agenda
of unprecedented government secrecy and unaccountability-68 Senators have once
again placed their trust in the administration by voting in favor of the
bill. They are trusting that the
surveillance targets, which need not be approved by any independent judicial
voice, are appropriate and are not likely to be Americans. They are trusting that the information
gleaned from such sweeping surveillance power is used properly. They are trusting that the communications of
Americans "inadvertently" captured in the course of surveillance operations are
not retained or used improperly.
By trusting rather than verifying,
they are abdicating their responsibility to protect America from excessive executive
power. By not standing up to this
imperial presidency, they are saying that fearmongering works and that Congress
is becoming irrelevant.
Showing a bit
more savvy and resolve than the Senate, the House has thus far refused to fall
prey to these same tactics and will let the Protect America Act expire on
Saturday. One can only hope that the
House will continue to listen
to the voices of those Americans who have grown tired of having their rights
and the rights of their neighbors trampled by this administration.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
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