Pakistan's Court Appointees Should Be Independent

Just as Pakistan’s first democratically elected government in decades was on the brink of undoing a number of power grabs by past military dictators, a wrench has been thrown in the works by an opposition politician and party leader. Mr. Nawaz Sharif, head of the opposition Pakistan Muslim League-Nawaz party (PML-N) is holding up passage of a package of constitutional reforms that would restore proper checks and balances on power.

There's more...

March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

Scalia is Originalist... Except When He's Not

One of the lingering questions I have had since the NAMUDNO decision was handed down over the summer is just how the self-professed "originalists" on the Court could square their skeptical views on the constitutionality of the Voting Rights Act with the very plain intention of the framers of the 15th Amendment that Congress, rather than the Court, should have the power to enforce Americans' right to vote. When the amendment was drafted in the years following the Civil War, the context was clear: the Supreme Court, whose disastrous Dred Scott decision not only was one of the impetuses for the war but also served to enshrine the institution of slavery, was not to be trusted; instead, faith would be placed in the Congress, which was then firmly under the control of the progressive (particularly on racial issues, but also on many economic ones as well) Radical Republicans. With that original intent fairly clear, how could an "originalist" sitting in a Court more than a century later, rule to limit Congress' power in this area?

It looks like I'm not the only one wondering whether the fealty shown by these so-called "originalists" to the original intent behind the Constitution is genuine or rather a rhetorical device to be thrown out when inconvenient. Here's the not-so-liberal Wall Street Journal's Law Blog:

In Wednesday’s WSJ, however, Georgetown Law Professor Randy Barnett takes serious issue with the court’s hesitation [to use the "Privileges or Immunities" clause of the Fourteenth Amendment as the basis for finding that the Second Amendment applies to the states] — specifically at those justices, like Justice Scalia, who claim to be “originalists,” or guided by the Constitution’s “original” meaning. Barnett writes that a glance at the original meanings behind the PorI Clause and the Due Process clause lead to one conclusion: that PorI is the proper vehicle for Second Amendment incorporation.
But what about the clause protecting the “privileges or immunities of citizens of the United States”? . . . Actually, the right to keep and bear arms was among the most frequently mentioned privilege of citizens when the amendment was being considered in Congress.

The evidence is clear that the privileges or immunities of citizens included those rights in the Bill of Rights. As Michigan’s Sen. Jacob Howard explained to the Senate, these privileges or immunities included, among others, “the personal rights guarantied and secured by the first eight amendments of the Constitution; such as . . . the right to keep and to bear arms.”

In contrast, no one thought the language of the Due Process Clause included a right to arms. On this point there is consensus among constitutional scholars whether left, right or libertarian.

According to SCOTUSblog, Justice Antonin Scalia, who fancies himself to be an "originalist," had the following to say about the invocation of the "Privileges or Immunities" clause:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate”...

I'd recommend you read the whole WSJ post, because it's interesting and gets to the heart of this very key question: Just how much do the "originalists" actually care about original intent?

Why Are Animal Rights Groups for Banning Depictions of Animal Cruelty?

The most memorable video we watched in middle school showed the treatment of animals in the beauty industry. Students squirmed as they saw what happens to a rabbit’s eyes after lipstick has been shoved in them. Many kids covered their faces. Others protested having to watch.

It bothered me then, newly a vegetarian, to see students shielding themselves from confronting cruelty. But today it troubles me more to see animal rights advocates defending a law to banish images of cruelty entirely.

The federal law, Section 48, prohibits selling any “depiction of animal cruelty” across state lines. The Supreme Court is now considering whether the ban – targeted at violence fetish “crush” videos of people stomping animals, but far broader in scope – violates the First Amendment. Animal rights groups and the Obama administration are asking to Court to restore Section 48, which was overturned by 3rd Circuit Court of Appeals, along with the conviction of Robert Stevens, who created and narrated dogfighting videos using others’ footage.  Stevens had been sentenced under Section 48 to three years in jail for making the films.  Michael Vick served one year less for running a dogfighting ring.

Animal Rights groups like the Humane Society reassure us that Section 48 specifically exempts works with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” But by carving out that exception, the law’s authors only confirm that banning videos just because they depict violence against animals is a problem for free expression. That exception is no solution. Section 48 requires depictions of violence against animals, unlike other speech, to demonstrate serious value (How would Zombieland fare against the same standard?). It’s an arbitrary standard, and it invites arbitrary judgments: In oral arguments, Deputy Solicitor General Neal Katyal reassured the Justices that Spanish bullfights are artistic enough, and Roman gladiator contests are historic enough, to be exempt from the ban.

Some have defended Section 48 by comparing animal cruelty law to child pornography. But the act of capturing an abused child on tape is, itself, a further violation of the child’s dignity.  Few would argue, on the other hand, that the act of taping an abused animal is a separate violation of the animal’s rights.

As part of his defense, Stevens is now claiming that his videos, which he marketedthrough the underground “Sporting Dog Journal,” were really designed as critiques of dogfighting.  As a factual claim, that’s hard to take seriously.  But by raising the hypothetical – what if these videos really were intentionally nauseating exposes, theApocalypse Now of dogfighting – he highlights a serious challenge to Section 48 and its defenders.  If the law would ban the ugly film supporting dogfighting but permit the one opposing it, how can animal rights advocates defend it under the First Ammendment? On the other hand, if the law bans disturbing images equally, whether they condone or condemn the cruelty, should those advocates want to defend it?

There's more...

Diaries

Advertise Blogads