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Liberty & National Security
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."
Read the rest of this story ...
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
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 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 Andrew Stengel – 04/17/08
Every presidential debate this season—there have been more
than 40 and counting—I hope the subject matter will focus on some of the more important
issues (not just ones leading the polls) while asking
candidates questions they haven't addressed before.
Before last night's debate between the Democratic candidates
broadcasted from the Constitution Center in Philadelphia,
I was sure moderators Charlie Gibson and George Stephanopoulos would do
something different and avoid well-trodden issues while also
focusing on substance over style—as I said after the last debate held in Ohio, and similar to the
refrain of long-suffering Brooklyn Dodgers fans of the 40's and 50's: Wait till
next time. But, I was wrong again.
The first half of last night's two-hour debate seemed more
like a 527 ad in October. Focusing on Senator Clinton's trip to Bosnia and Senator Obama's relationship to his pastor,
Jeremiah Wright, it was a rehash of old news. Both subjects have been talked about to death. The debate
questions were more relevant in the second hour, covering pledges to
withdraw from Iraq,
taxes, handguns and affirmative action and college applicants.
I think of what could have been during the first hour had
the moderators chose to ask questions that haven't been addressed before-- maybe
about the recently released, previously classified "torture
memo," yet another smoking gun proving that the president's advisors have
justified perverting Constitutional checks and balances in the interest of
national security resulting in the monarchial presidency. Or, that two
million homes secured by subprime loans will go into foreclosure by 2009
and that
minorities were far likelier to get higher-cost loans.
I, for one, hope that yesterday's debate was akin to the
ending of the Dodgers' 1953 season when the Yankees' Billy Martin hit the game-winning run
in the bottom on the ninth to win game six and the World Series.
I'll wait till the next debate in North Carolina. Though CBS has yet to confirm the debate, it could be 1955 for us fans of unasked crucial debate questions go.
Tags: Democracy, Liberty & National Security
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
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