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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Friday, 20 January 2006
Constitutional Law: The Professionals' Views
Topic: The Law

Constitutional Law: The Professionals' Views

One contributor to these pages, our friend the high-powered Wall Street attorney with his office more than thirty floors above the hole where the World Trade Center once stood, studied constitutional law under the late Peter Rodino. Rodino, of course, chaired the committee that voted to impeach Richard Nixon. Rodino knows things, and they became friends. And as much as it would be good to have our Wall Street friend comment on the extraordinary events of this week - the administration presenting a completely unexpected interpretation of the constitution that argues the president need not follow any law he decides limits his actions - that is just not going to happen. Our friend's work precludes that (he's kind of busy), and he plays in two orchestras (see this, his photos of the green room at Carnegie Hall), and his daughter is on pins and needles waiting to see which college will accept her, and there are pressing matters with a few boards he chairs, and there's the pro bono work. Things will only get worse when, soon, his son starts to drive. So we must turn elsewhere to unpack this whole business.

Glenn Greenwald for the past ten years has been a litigator in New York, specializing in First Amendment challenges, civil rights cases, and corporate and security fraud matters. He will have to do. At his law site Unclaimed Territory, Greenwald explains, here, just what seems to be going on. What follows is an attempt to follow him through it all, taking the detailed professional view and putting it in layman's terms.

First of all there's setting the stage.

A month ago (December 22nd) the Department of Justice issued a five-page letter outlining its arguments as to why the President's NSA warrantless eavesdropping program was legally justified. That's here. Then the Congressional Research Service - independent and nonpartisan - on January 5th said that didn't seem to be so. That's here (.pdf format). Then on the 9th there was this (also .pdf format), a letter from fourteen big-gun lawyers and former government people saying this NSA program was clearly illegal - William Sessions who used to run the FBI, and Lawrence Tribe, the man who teaches constitutional law at Harvard, David Cole who does the same at Georgetown, from Duke, Curtis Bradley and Walter Dellinger, from the University of Chicago, Richard Epstein and Geoffrey Stone. That was pretty impressive. And Greenwald points to this, an index of all the arguments on the web that any way you looked at this, the executive order to the NSA to ignore the law and bypass the FISA court was illegal.

The response to all this "push back" saying the president had broken, was breaking, and vowed to continue breaking the law - and to Gore's Martin Luther King Day speech (see Things Have Changed in these pages) - came on Thursday, January 19th with the Department of Justice issuing a forty-two page letter explaining the administration's position. It seemed to be an attempt at clarification.

This long "letter" makes the original claims - the president can break any law he wants as the constitution says he's supposed to protect us, and the congress, even if they didn't realize it, said he could when they authorized him to invade Afghanistan and take "any appropriate action" to deal with any state that supported terrorists and any people or organizations who were terrorists.

But here's the kicker - Greenwald points out that, in addition to adding detail to these first two arguments, now there's a third - if it becomes necessary now the Department of Justice is prepared to argue that the controlling law - the FISA statutes that requires showing probable cause and obtaining a warrant before secretly tapping into the voice and electronic communication of US citizens - is itself unconstitutional. Any law the "impedes" the President's power to do what he feels is "appropriate" is, by its very nature, unconstitutional, as long as as the president says what he is doing is related in any way to the War on Terror. (Of course, he gets to decide just what is the related to the war on terror.)

This is a new one. Congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them. Cool.

This Department of Justice letter is here. (Yes, it's also in .pdf format.)

From Greenwald's observations, there's this, what he considers the core argument - neither the law, nor the courts, nor Congress, nor anything else, can interfere with, limit or even review the President's powers -
"Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President's most solemn constitutional obligation - to defend the United States against foreign attack."
Greenwald's take? They're saying the constitution not only allows, but requires, the President to defend the country. Therefore, the President is empowered to do anything at all which he "determines ... [is] necessary to the defense of the United States from a subsequent terrorist attack," and any "interference" - whether from the law, the Congress, or the courts - is "impermissible."

Greenwald -
In order to defend Bush's eavesdropping program, the Administration is required to assert this position of presidential omnipotence. It has no choice. That's because the DoJ's principal argument as to why the President had the right to eavesdrop outside of FISA is that the Congressional resolution authorizing the use of force in Afghanistan and against al Qaeda (AUMF) implicitly granted the President an exemption to FISA - even though it did not mention eavesdropping or FISA - because the AUMF's "expansive language ...places the President's authority at its zenith" (p. 11) and thus "affords the President, at minimum, discretion to employ the traditional incidents of the use of military force" including within the U.S. and against U.S. citizens (p. 10 & 11) (President can use these powers "wherever [terrorists] may be - on United States soil or abroad").
What would Pete Rodino say?

More snippets from the document -
- "[T]he President's role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence." (p. 30);

- The President is the "sole organ for the Nation in foreign affairs" (p. 1);

- "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10);

- "[I]t is clear that some presidential authorities in this context are beyond Congress's ability to regulate" (p. 30);

- "Indeed, 'in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere'") (quoting Attorney General Robert H. Jackson) (p. 10);

- "Among the President's most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

- the President's war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7)
This applies, Greenwald notes, "even in conflicts where, as the Administration concedes is the case here, no war has been declared by Congress (p. 26) (acknowledging the "important differences between a formal declaration of war and a resolution such as the AUMF").

Just call it a war and that will do? Seems so. No formal war declaration by Congress is required.

And as for this idea that congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them, note these -
- Congress knew when it was enacting FISA that it "was pressing or even exceeding constitutional limits" (p. 19);

- "Whether Congress may interfere with the President's constitutional authority" to eavesdrop on Americans as part of the war against terrorists "poses a difficult constitutional question" (p. 29);

- "If an interpretation of FISA that allows the President to conduct the NSA activities were not 'fairly possible,' FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." (p. 35).
So, as Greenwald sees it, "anything which stands in the way of George Bush's powers - which 'impedes' or 'interferes' with those powers - is now, according to the Department of Justice, unconstitutional."

That does seem to be the argument. And the logic is clear - even if the congress actually had specifically said, "Do what you must, George, but don't break the law," it won't matter. They can't say that. They're not allowed to. That's unconstitutional.

Oh, and by the way, note here that Attorney General Alberto Gonzalez says no Special Counsel is needed to investigate any of this because he himself already looked into all this, and, golly, everything that was done and still being done is perfectly legal. Move on, folks. Nothing to see here.

Basically, the letter concedes the law is clear, and that the administration broke it and is breaking it, but the law is really unconstitutional and thus doesn't really matter much, if you think about it their way. The letter refers to "[t]he President's determination that electronic surveillance of al Qaeda outside the confines of FISA was 'necessary and appropriate.'" (p. 36, fn. 21). Trust him. Has he ever misled anyone or gotten anything wrong? And heck, he's determined.

In these pages, back in December, you'd find a discussion of the legal theorist behind all this, John Yoo, now safely back at UC Berkeley. But his theories live on - nothing "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." This is Yoo writ large.

Greenwald says "it is difficult to overstate how radical and consequential this development is."

Is it? Ric Erickson, editor of MetropoleParis, often tells me that, from afar, it seems to him the government here has taken the position that its citizens are the enemy, until they prove otherwise. There's something to that.

Things certainly are changing. And in this War on Terror, what next is "necessary and appropriate" - canceling the next presidential election?

Ah heck, keep us scared enough and we'll agree to anything.


Notes and Quotes:

Elsewhere, Greenwald, with no small amount of irony, quotes Bush's very favorite Supreme Court Justice, Antonin Scalia. That's this, Scalia's dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) -
"The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, ?8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.
When Alito gets there he'll take Tony aside and explain how things really work.

And one reader left this at Greenwald's site - "Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do." - J.P. Morgan


Posted by Alan at 21:06 PST | Post Comment | Permalink
Updated: Friday, 20 January 2006 21:10 PST home

Monday, 19 December 2005

Topic: The Law

The Good Old Days Return

As reported by Nasser Karimi of the Associated Press, Monday, December 19, Iran's President Bans Western Music.

Mahmoud Ahmadinejad is at it again. Wasn't it just last week he said the Holocaust never happened, or was some sort of exaggeration? I think he called a myth. And didn't he also suggest Israel, if not wiped from the face of the map, should at least be removed from the Middle East and be reestablished in Europe? (Where? They have spare room in Slovenia?)

Now this - it's time to move the country back to the early days of the 1979 Islamic Revolution. Those were the good old days?

We're told that ditties like George Michael's "Careless Whisper," Eric Clapton's "Rush" and the Eagles' "Hotel California" have commonly accompanied Iranian broadcasts. Perhaps the "Hotel California" thing explains the seventy-six logons to Just Above Sunset from Iran in the last two years, and the two or more logons to the daily web log from Tehran each week - California Dreamin' and all that.

This ban is puzzling, but the AP item notes they had also played there a lot of tunes by the schlock jazz saxophonist Kenny G. You can get behind banning him. No problem.

In any event, the official daily paper over there said that Ahmadinejad, as head of the Supreme Cultural Revolutionary Council (think of Bill O'Reilly and the Christmas Wars), said this was now required - no more "indecent and Western music" on Islamic Republic of Iran Broadcasting. Enough is enough.

It seems western music, films and clothing are widely available in Iran, "and hip-hop can be heard on Tehran's streets, blaring from car speakers or from music shops." Who'd have guessed? And there seems to be a thriving black market for bootleg videos and DVD's of films banned by the state.

But they had an election. Ahmadinejad won convincingly, on a platform to clean things up. Of course Ayatollah Khomeini outlawed all music as "un-Islamic" back in the good old days, but then, after he was gone, you started to get a bit of light classical music on state radio and television. Things were slipping, and by the late eighties there were, of all things, a few public concerts. So this had to stop.

Ahmadinejad campaigned on a platform to confront "the Western cultural invasion" and promote Islamic values. And he won. So they move back to the good old days.

Well, the Fox News O'Reilly-Gibson effort to punish those who use "Happy Holidays" and not "Merry Christmas" in advertising and in the personal greetings of us all on the streets and in the offices and homes in America, and all the talk in congress about getting the FCC to expand its regulation of what we are allowed to see and hear beyond the pubic broadcast media to now include pay-for-access cable television and satellite radio (the new realm of Howard Stern), means we too want to return to the good old days. But that would be the Ozzie and Harriet fifties, not seventeenth-century Puritan New England, or so we all hope.

And that bring us to Martin Garbus, partner in the law firm of Davis and Gilbert. Time Magazine says he's "legendary" (in some circles) and "one of the best trial lawyers in the country." The National Law Journal says he's America's "most prominent First Amendment lawyer" - one of the country's top ten litigators. He's now involved a copyright infringement suit against that hip-hop fellow Eminem (Marshall Mathers). Garbus represents a composer, not the Mathers fellow. And yes, this cause would be moot in Iran.

He's also presently representing employees in a class action employment discrimination suit challenging Bush's "faith based" initiative, and flight attendants in a labor dispute against their union and American Airlines. He's busy. And there's much more at his bio - he represented Lenny Bruce against obscenity charges, handled the estates of Marilyn Monroe, Igor Stravinsky, John Cheever and Margaret Mitchell, and was the fellow who handled Mitchell case involving that parody of "Gone With the Wind." (He lost that one, as discussed in these page in 2003 here, and in 2004 here.) Along the way he's represented and advocated on behalf of Nelson Mandela, Vaclav Havel, Daniel Ellsberg and Andrei Sakharov. He's a big gun.

And he's worried about going back to the good old days. In an item co-written with Leonard Weinglass - one of the attorneys involved in the 1971 Nixon case where the administration then contended the president's powers as Commander-in-Chief at a time of even undeclared war overrode the privacy rights of citizens (domestic spying was necessary and legal) - he's say we're back there again.

That's here, and the New York Times headline from Monday, December 19, 2005 is, of course, Bush Says U.S. Spy Program Is Legal and Essential.

It's the same argument. "Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States." Except Bush is winning this time.

Nixon lost -
A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.
So the Fourth Amendment, insofar as it protects us all from unreasonable search and seizure, seemed like a good thing then. As the fourth of the first ten amendments, the basic bill of rights, they didn't want to mess with it.

Then there was the exception -
... in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.
So every administration since 1978 has had this super-secret court available to approve domestic spying. In the Times item above, reporting on the Monday the 19th Bush press conference, you'll note the president was asked why he felt he had to bypass this court. Heck, no one else had a problem with it. The president said it took too much time and speed was of the essence, or some such thing. Of course the law allows the spying, by wiretap or whatever, to take place without a hearing, as long as within seventy-two hours the court is notified about what was done and allowed to review what was done. What's the problem?

And it's not like these guys deny warrants, as you can see in this table (discussed here). They deny virtually nothing.

Something is up when this is not sufficient. Did Bush Domestic Spy Program Eavesdrop On American Journalists? That's possible.

Is this program, outside the law, being used to compile an "enemies list?" As Newsweek reported in their June 6 issue -
The bitter debate about John Bolton's nomination to the United Nations may have called unwelcome attention to the spying practices of the National Security Agency. Bolton told Congress last month that he asked the NSA for the names of Americans in raw intel reports. NSA rules prohibit the agency from spying on Americans; if electronic eavesdroppers inadvertently pick up American names, the NSA is supposed to black them out before forwarding reports to other agencies. But analysts and policymakers can make written requests to the NSA for U.S. names, which the State Department says Bolton did 10 times since 2001.

The Senate Foreign Relations Committee asked for more information about Bolton's requests, but the administration refused, leading to last week's vote to delay Bolton's nomination. Meanwhile, the Senate intelligence committee's chairman, Pat Roberts, and its top Democrat, Jay Rockefeller, got a closed-door briefing on Bolton's NSA dealings from the deputy intel czar, Gen. Michael Hayden. The senators agreed Bolton's initial NSA requests for U.S. names were legit. But the normally collegial Roberts and Rockefeller couldn't agree on whether Bolton handled the names appropriately once he received them. In dueling letters made public, the senators aired their differences. Senator Roberts argued that Democrats called unnecessary attention to intel "sources and methods" by raising Bolton's NSA dealings publicly. Rockefeller complained that Bolton sought out a State Department official whose name was supplied by the NSA "to congratulate him" - for unspecified reasons - which Rockefeller said was "not in keeping" with Bolton's request for the uncensored NSA report. Roberts said this charge was ill founded.
Something was up with that. There was lots of talk the Bolton was using the NSA intercepts to get back at people he didn't like, and who he thought were giving him and the administration grief. But the records weren't released and the matter disappeared. But now? Those people could be reporters or anyone who was making waves.

The senate did not confirm Bolton, partially because of this matter, so the president used a "recess appointment," while the senate was out of town, to name Bolton to the UN post, where he will serve, with no possible review, until after the 2006 mid-term elections, when we have a newly formed senate and it is seated. Very odd, isn't it?

But none of this matters. As of Monday, December 19th, the president is saying he will continue doing just what he as been doing, bypassing any judicial review of this domestic spying, not bothering with warrants, in order to keep us safe and free. It's for our own good. Things have changed.

Martin Garbus -
What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.
But a reversal of the Nixon decision gets us back to the good old days. Nixon was piker compared to these folks.

As for Roberts, Scalia, Thomas, Alito and Kennedy deferring to the idea of an executive branch that should not be subject to the law, well, the new nominee, Alito, has already ruled in the Sixth Circuit that the president is kind of special in a way. Congress may pass the laws, but the president was inherently protected "from congressional pilfering." (That nomination had little to do with Roe v Wade, as you see.)

Besides, Congress Gave President The Authority To Spy On Americans - the Attorney General said so on the Today Show on Monday, December 19th, so it must be so.

Of course that's news to one senator -
Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.).
Yep, he has, but what are you going to do about it, Russ? The game is over. The good old days (before Nixon's attorneys blew it) are back.

Posted by Alan at 14:51 PST | Post Comment | Permalink
Updated: Monday, 19 December 2005 14:59 PST home

Tuesday, 13 December 2005

Topic: The Law

Jurisprudence and Prudence: Justice in the State Governed by Former Movie Stars

Capital punishment has been discussed before in these pages.

There was the extended discussion of Scott Turow's book Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (Farrar, Straus & Giroux) way back in mid-October of 2003, and, in late December of that year, The Culture of Death: Who We Should Kill and Why, a discussion of whether Saddam Hussein deserves the death penalty.

Posted on March 7, 2004 was the item Getting Even, a discussion of and commentary on Jeffrie G. Murphy's book, Getting Even: Forgiveness and Its Limits (Oxford University Press).

That item pointed back to an item the previous year by Antonin Scalia, one of the nine on the Supreme Court, an essay titled God's Justice and Ours. Antonin Scalia was sort of saying this - since the death penalty was "clearly permitted when the Eighth Amendment [which prohibits 'cruel and unusual punishments'] was adopted," and at that time the death penalty was applied for all felonies -including, for example, the felony of horse-thieving, "so it is clearly permitted today." Justice Scalia it seems has no doubt that if the crime of horse stealing carried a death penalty today in the United States - he would find that law constitutional. Well, that really is his logic. So if we study history, we could extend the death penalty to those people who practice witchcraft, adultery, homosexuality and, say, heresy? All we need to do is find those particular death penalty laws existing as of November 3, 1791, and re-instate them. Scalia derives his ideas also, it seems, from Romans 13 - government authority is derived from God and not from the people; he asserts his view was the consensus of Western thought until recent times - "a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals." Democracy, according to Scalia, creates problems, "It fosters civil disobedience." So screw it. Well, he's an odd duck.

Other discussions?

There was The Company We Keep (July 25, 2004), a discussion of which countries, like us, employ the death penalty. And A Minor Matter (March 6, 2005), opinion on the then recent Supreme Court decision that we really ought not execute minors.

Then there was An Idea Whose Time Has Come (March 20, 2005), a discussion of the idea proposed by a professor of constitutional law at UCLA that not only should we have a death penalty, we should have extended public executions involving torture and pain, and the family of the victim should be the ones inflicting that pain and death - but he doesn't think we will go for amending the constitution to allow that. And then he changes his mind. Maybe the whole idea wasn't that good an idea. In fact, in An Oklahoman Turns European (April 24, 2005) we see the father of one of the victims of the famous Oklahoma City bombing of the Federal Building there is a vocal opponent of the death penalty - Timmy didn't have to die, as he reasons it out.

So it's not as if this issue hasn't come up before.

Anyway, the nub of the matter, as Turow puts it in his book, is that, on the one hand, some crimes, like murder, are so extreme that they require the most extreme retribution. On the other hand, state-sanctioned killing reduces our society to its lowest common denominator, making all of us complicit in the taking of a life.

The basic question? "Should a democratic state ever be permitted to kill its citizens? If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens"

Who knows?

Those enthusiastic about the death penalty see it as "a statement of moral value" to be applied widely and often, to say who we are - to clearly show what we just won't tolerate. And there may be some merit in that. But some of us won't tolerate the concept that the state can decide to take anyone's life - as the decision is so often flawed, and even when it isn't flawed, shows something else about us all. We don't like what it shows.

And round and around it goes. But the position here has been consistent.

"It is the job of thinking people not to be on the side of the executioners." - Albert Camus (1913-1960)

But we just did it again, out here in California.

Tookie Williams Is Executed
The killer of four and Crips co-founder is given a lethal injection after Schwarzenegger denies clemency. He never admitted his guilt.
Jenifer Warren and Maura Dolan, Los Angeles Times, Tuesday, December 13, 2005, 2:18 AM PST

The bare bones -
Stanley Tookie Williams, whose self-described evolution from gang thug to antiviolence crusader won him an international following and nominations for a Nobel Peace Prize, was executed by lethal injection early today, hours after Gov. Arnold Schwarzenegger refused to spare his life.

His death was announced at 12:35 a.m.

During the execution, the inmate's friend Barbara Becnel and other supporters mouthed "God bless you" and "We love you" and blew kisses to Williams. Williams also seemed to mouth statements to Becnel.

The entire procedure took longer than usual. The execution team took about 12 minutes to find a vein in Williams' muscular left arm. While the personnel were probing, Williams repeatedly lifted his head off the gurney, winced visibly, and at one point appeared to say: "Still can't find it?"
So read Warren and Dolan if you want more detail of who said what.

And too, there's background like this -
Despite persistent pleas for mercy from around the globe, the governor earlier in the day had said Williams was unworthy of clemency because he had not admitted his brutal shotgun murders of four people during two robberies 26 years ago.

After the U.S. Supreme Court denied a request for a last-minute stay Monday evening, the co-founder of the infamous Crips street gang - who insisted he was innocent of the murders - became the 12th man executed by the state of California since voters reinstated capital punishment in 1978.
This was high drama out here. The racial implications were hanging heavy in the air - the dreaded black gangs had to be stopped, and for some whites, the lawless, hyper-masculine and testosterone-pumped virile (if not feral) sexually-threatening savage black man had to be put down, as you put down an animal. But that bubbled under the surface.

And would there be riots all over Los Angeles as we had when the police who beat the crap out of Rodney King were found guilty of nothing at all? No, this fellow was hardly a goofy innocent. Some screamed he was innocent. Not many were buying that line. He had not been a nice man. He was tried for murder, convicted and sentenced, in 1981, down in Torrance, a bedroom community of aerospace folks (Hughes, TRW, Northrop and all that) just south of the airport and, at the time, a white-bread place if there ever was one. But he would have been convicted in Compton or Watts. The angry in black community did not seem to want to burn down the city over the officially authorized execution of this particular guy. The Times quotes "African American activist" Eric Wattree - "We have to understand, this is our failure taking place here." The day was quiet.

As the Times points out, and as many can see, the theme here was really something else - what they call "society's dueling goals of redemption and retribution."

The argument came down to whether he should pay with his life for what he had done - or had all the writing, the series of books warning ghetto kids away from violence, the brokering of gang truces in Los Angeles and New Jersey, and all the rest, "redeemed him," and earned him life in prison without the possibility of parole, until he died of something other than the state's injections. Last year, after all, this guy's life had been made into a television movie - "Redemption," starring Jamie Foxx. Heck, Desmond Tutu and Snoop Dogg said the man's life should be spared. Joan Baez sang "Swing Low, Sweet Chariot" outside the prison walls hours before the execution, for - excuse the pun - goodness sake. This was high drama out here.

Arnold Schwarzenegger knows drama, or at least melodrama, and, as reported, said he saw no need to rehash or second-guess the many court decisions already rendered in the case. His thumb shot down, just like in the movies. Of course he was on solid ground. Sunday before the execution the state Supreme Court heard the argument that the 1981 trial was "fundamentally unfair" because the prosecutors had failed to disclose that a key witness, Alfred Coward, was a violent ex-felon. They said it didn't matter. The Ninth Circuit agreed the next day, as did the US Supreme Court. Alfred Coward may have been a violent ex-felon, and that should have been revealed, but it would not have made a difference.

So Stanley Tookie Williams is gone.

And the lead editorial in the Los Angeles Times, on newsstands an hour or two after the execution, said, well, It's not about Tookie.

It isn't?

The argument here is that Schwarzenegger should have granted clemency to the guy before, one Donald Beardslee, a convicted murderer executed in January with no big fanfare of any kind. The Times thinks Schwarzenegger should have made it clear that "no one would be put to death on his watch" - as they contend "a civilized society doesn't kill for retribution and should certainly not continue doing so when it's become clear that the judicial system's margin of error is unacceptably high."

Short form: Exacting retribution is uncivilized, and doing it incompetently is even worse.

What they don't mention is every film Schwarzenegger ever made is about retribution - the bad guys get what's coming to them, and no matter how they plead and whimper, they die, spectacularly, and noisily, with music. And there may be collateral damage (the title of one of his recent films, oddly enough), but stuff happens. This is what he knows. This is what made him who he is. He never said he was a policy expert or knew much about governance - he sold himself to the voters as the outsider who wouldn't be encumbered by all that, and what we really needed. What did the Times expect?

The Times says Schwarzenegger turned Williams down "because he does not consider capital punishment to be about our values as a society, but about the merits of the convicted supplicant." The man didn't seem sincere enough? He didn't grovel enough for the Terminator to spare him? Like this is a movie?

The Times position, that that capital punishment is always wrong because it is incompatible with our values, isn't in the script. They say that those who opposed Williams' plea argue that he deserved his fate, "but the people of California don't deserve to play the role of executioner." But that is role we have the script, and Arnold is our man.

We see also there are now 647 folks on Death Row out here, and next up is Clarence Ray Allen, scheduled for 17 January. He's seventy-five, blind and confined to a wheelchair. Can the state keep him alive until the 17th? This should be interesting. Didn't see that one in any of the Schwarzenegger movies.

James Wolcott here voices what may of us in the tiny minority who oppose the death penalty feel at the moment -
I held out the fugitive hope that the moderate side of Schwarzenegger might prevail as his wife tugged him in the direction of leniency and mercy. What a fool I am. Whatever Maria Shriver said or didn't say was of no consequence, nor were the pleas for clemency from citizens, famous and obscure alike, who felt Williams had done enough good over the last twenty years to deserve having his life spared.

The death penalty must be abolished. No former movie action hero - or Yale cheerleader with enough psychological baggage to sink the African Queen - should be entrusted with the power of life and death over his fellow citizens. These are essentially frivolous, uninformed men playacting blue-suited roles of grave responsibility. And, no, I don't think Bill Clinton should have executed Ricky Ray Rector either. Capital punishment must be de-politicized, and as long as politicians make the final decision, depoliticization is impossible. So abolish it.
Well, that is the bottom line, isn't it? No politician should be entrusted with the power of life and death over his fellow citizens. Yeah, think about those who aspire to politics, with their mixture of idealism and raw hunger for power over others, with their soaring egos and odd insecurities, and with their almost pathological narcissism.

But Wolcott is angry with these fools who are politicians. These are the people who get to say who lives and dies?

But how about this? No government should be entrusted with the power of life and death over its fellow citizens. We, as citizens, are entitled to life - a basic premise. If we do horrible things we can be punished. Grant the government that. But set aside what is called the "ultimate punishment." The government has no right to kill its citizens, as governments are notoriously mistaken again and again, and change their calculation of legal and illegal, right and wrong, as they correct themselves over the long years - and they're artificial constructs of convenience. Don't give them the power to kill their citizens.

Funny, you'd think most conservatives on the right - the less government is better folks - would see this. Ah well.

An aside - France abolished the death penalty in 1981 and you see here, Julien Dray, spokesman for the Socialist Party in France, saying, "Schwarzenegger has a lot of muscles, but apparently not much heart." That's not the point, but it's amusing.

Jeralyn Merritt, defense attorney of note, adds the basic facts here about governments being notoriously mistaken. Since 1973, 122 people in 25 states have been released from death row with evidence of their innocence. She says it's time for a moratorium. And she quotes Supreme Court Justice Brennan from 1994 - "Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent."

Also noted there, Sean Paul - "What requires more courage: revenge or forgiveness?"

What plays better politically?

And Susan Hu -
What matters for me is that murdering Tookie solves nothing, makes the United States look barbaric to the rest of the world, and destroys Tookie's future chances to influence more young people against entering the gang life. ...
And from Jeralyn Merritt's own memorandum to Schwarzenegger -
Clemency is about mercy. It is an act of grace. You have the opportunity to stop a needless killing. Tookie's execution will not bring the victims back. It will not heal. The welfare of the people of California is best served by the message clemency would send - one of hope to the tens of thousands of disadvantaged young people your administration has professed to care so deeply about. A denial of clemency will send a message of despair.
Note these last two items presume one of the jobs of government is to provide hope that things will be better. That's a "progressive" view, not a conservative one. It is well beyond obvious the conservative national government of Bush-Cheney-Rumsfeld operates on a far different premise - we're in deep danger and could all die and you should be very afraid and keep us in power to protect you. Mercy? Healing? We may have to torture people to keep you safe, and you really don't want to know about that. It's a cruel world and there is pure evil and there is no way you can think what is pure evil can ever change, or think those who perpetrate evil deserve anything less than horrible pain or death, as it's us or them.

Hell, Arnold Schwarzenegger is just a minor George Bush, with a different accent, but just about the same language skills, the same analytical skills, and the same distain for complexity. The political strategy is the same - keep up the level of fear and show you are eliminating, in one way or another, the evildoers you have made into cartoon bogeymen.

But that really does work.

By the way, Amnesty International here takes a completely different approach to the issue, pointing out the logic problem -
By refusing to stay Williams' execution, Gov. Schwarzenegger has failed to demonstrate genuine leadership on this issue. In his prepared statement, he said that he was placing his trust in California's criminal justice system, which the Senate Commission is currently investigating. Last year, the legislative body recognized the pervasive flaws plaguing the system and tasked the Commission with discovering and exposing the potentially lethal errors and bias that have metastasized throughout the state's administration of the death penalty.

As California's highest-ranking public official, Gov. Schwarzenegger has an obligation to guarantee that all of the state's laws are applied equally to everyone - even people on death row. But today, he abandoned that responsibility and left the more than 640 death row inmates to fend for themselves in the state's broken system. According to the Santa Clara Law Review, California's death penalty system is incapable of providing equal protection because it lacks "... the basic safeguards to avoid capricious, erroneous, and discriminatory application of the death penalty."
Hey, Arnold, you say you trust the courts got it right and your own commission says they often just don't get it right. What up with that?

Finally a good read is Jeanne over at Body and Soul telling us here how she tried to explain this all to her young daughter. The kid is confused about how it makes sense that when someone kills someone else we show that is really bad by killing them. Yeah, kids are a pain sometimes. She suggests there are leaned behaviors at play here -
We think there's some instinctive desire for vengeance that law and civilization help us overcome, but I wonder if there is not also an instinctive recoiling from vengeance, like the one I saw on my daughter's face last night. A deep-seated understanding that if killing is wrong, killing a killer is also wrong. I don't know, but I wonder if we have it all turned around. People don't have to learn not to be vengeful; they have to bury their natural compassion.
Maybe so. But we seem to have done that.

As Steve Lopez of the Los Angeles Times, who actually witnessed the execution, suggests here, this was a "macabre spectacle in a nation that preaches godly virtue to the world while resisting a global march away from the Medieval practice of capital punishment." But he was okay with it - as were most people.


It should be noted the next controversial death penalty case where there is a question of whether clemency should be granted is not the one out here with the seventy-five-year-old blind man in the wheelchair. This one concerns one Cory Maye of Jefferson Davis County, Mississippi.

Here's a quick summary -
In the process of executing a warranted no-knock search on Maye's neighbor in the middle of the night, cops burst into Maye's home, unannounced. Maye woke up and, fearing for his life (that of his 18-month-old child), fired on one of the police, who later died from the wound. The cop's death is a horrible tragedy, but the cause was the cops' mistake - breaking down the door of the wrong home - not Cory Maye's. If Maye reasonably believed his life was in danger, the shooting was self-defense.
Well, he was convicted of first-degree murder, given the death penalty, and scheduled for execution.

Read all about it here - all the details and lots of links. The local police mistakenly break down the door of a sleeping man, late at night, as part of drug raid. But the man wasn't named in the warrant, and wasn't a suspect. The man, frightened for himself and his infant daughter, fires at an intruder who had just rushed into his bedroom after the door had been kicked in.

The problem?

The man, who is black, has just killed the white son of the town's police chief. Oops. The police apparently beat Maye pretty comprehensively after he was arrested. And he's summarily convicted and sentenced to death by a mostly white jury. The man has no criminal record, and police changed their story about finding traces of drugs in his possession at the time of the raid. They turn up the next day, oddly enough.

Yeah, right.

This should be interesting.

Posted by Alan at 21:30 PST | Post Comment | Permalink
Updated: Wednesday, 14 December 2005 07:08 PST home

Monday, 31 October 2005

Topic: The Law

Changing the Subject: The 'Wise guy' from Trenton - Sam 'Scalito' Gets Nominated

On Sunday, October 30 it was clear the White House really needed to change the subject. As noted in these pages, the two Sunday topics that had people buzzing were the new polling that showed now more than half the country felt all this business about the Bush team restoring "honor and integrity" to the White House was a load of crap, and this was a failed presidency, and a second item on the calls for an apology about what had happened with Libby and for Karl Rove to be fired. The administration was having a bad Sunday.

Add to that, CNN reported, first thing Monday, that the new count of our military losses in Iraq had jumped to 2,023 - "The six deaths [Monday] bring the number of U.S. soldiers to have died in Iraq this month to 90, the highest number of American deaths there since January when 107 Americans were killed." By the end of the day it was seven killed.

This is not good news for the administration - things are not getting better - and Sharon Jumper here, with details of the new and improved "improvised explosive devices," explains how now even our best and most heavily armored vehicles in theater can be easily penetrated. The IED is not just an exploding Coke can any longer. The enemy is adapting quickly to whatever we roll out.

So what to do?

Change the subject.

Bush Nominates Alito for Supreme Court
Ron Fournier, Associated Press, Monday, October 31, 2005
President Bush nominated veteran judge Samuel Alito for the Supreme Court Monday, seeking to shift the judiciary to the right and mollify conservatives who derailed his previous pick. Ready-to-rumble Democrats said Alito may curb abortion rights and be "too radical for the American people."

Drawing an unspoken contrast to failed nominee Harriet Miers, Bush declared that the appeals court judge "has more prior judicial experience than any Supreme Court nominee in more than 70 years."

… So consistently conservative, Alito has been dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to conservative Supreme Court Justice Antonin Scalia. But while Scalia is outspoken and is known to badger lawyers, Alito is polite, reserved and even-tempered.
"Scalito." Well, that will change the subject.

Fournier quotes Senate Judiciary Committee Chairman Arlen Specter, one of those oddball Republicans who actually supports abortion rights, saying this abortion thing "will be among one of the first items Judge Alito and I will discuss."

No kidding.

But AP tracks down Rose Alito, the nominee's ninety-year-old mother. "Of course, he's against abortion." He's a good Catholic boy. From Jersey. Trenton.

Of course this will bring up jokes about The Sopranos and maybe Sinatra and the Mafia and all that.

Well, that is underway, and here's the immediate push back:
Mon Oct 31 2005 15:56:42 ET
National Italian American Foundation (NIAF) Statement:

The NIAF is distressed by the attempts of some senators and the media (CNN, CBS) to marginalize Judge Samuel Alito's outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, "Scalito."

Appropriately, no one mentioned that Justice Breyer was Jewish or suggested that he was lock-step ideologically with the other Jewish Supreme Court Justice, Ruth Bader Ginsburg, it would have been outrageous to do so. We still do not know Justice Robert's ethnicity. ...
Say, wouldn't this make the Supreme Court five Catholics and two Jews - a Catholic majority as noted here? What does that portend? Forget the Mafia. Is this an Opus Dei plot? What is that sneaky new German pope up to?

Insert your own conspiracy theory here:

See also Why Catholics? - The political advantages of Catholic justices by William Saletan in SLATE.COM - Tuesday, November 1, for more thoughts on the matter.

Well, this all should be interesting. The Democrats would have to filibuster to block this confirmation - the Republicans do have those fifty-five seats in the senate, and no one on that side is upset at this nomination. Harriet Miers is now old history. The old "in your face" Bush is back.

The AP also reports that the president called for confirmation of the fellow by year's end, but Senate leaders said the vote may wait until next year.

One suspects it is in the White House's interest that this is dragged out. No need to hurry. Keep the conflict and controversy hot, and extend it as long as possible. This is not governing by division and conflict, really - it's a subset of that. This is laying down a good thick smokescreen. And this is relying on the evidence so far that the general population can only attend to one big news story at a time. There was an earthquake in Pakistan and far more than one hundred thousand died? Really? New Orleans isn't rebuilt yet? You get the idea.

Well, the announcement on television was dull, at least on the replay here in Hollywood. No one seemed excited, or inspired. That was curious, and the Times of London (UK) captured the flavor here -
Having won two presidential elections and fought two unending wars, President Bush has run out of energy. Instead of the bouncing enthusiasm of happier days, his subdued manner indicates a loss of interest in the presidency itself, a desire to go home and rest.
Really? The Times post explains all this in detail, but one doubts their conclusion about the man wanting to go home. How can he go home now? What would that look like?

Judge Samuel Alito

So who is this guy? There's a complete, but negative, biography from the American Constitution Society here. He was born in 1950, did his undergraduate degree at Princeton and his law degree from Yale. Bush's father nominated him to sit on the Third Circuit Court of Appeals in New Jersey. Before that he was clerk to Third Circuit Judge Leonard I. Garth, then Assistant to the Solicitor General as Deputy Assistant Attorney General, and was at one time Attorney for the District of New Jersey, a prosecutor.

In fact, that last part is what troubles defense attorney Jeralyn Merritt here:
Before becoming a judge, after a short stint as a law clerk for a federal judge, Alito's entire career - from 1977 to 1990 - was as a prosecutor or attorney for the Government.

Again, my prediction: A disaster appointment for those who care about the constitutional rights of the accused. I don't want a career prosecutor like Alito on the Supreme Court. I fear he will be a major proponent of the war on drugs, the death penalty and the war against immigrants, while he will rule to restrict habeas rights and Miranda.
Or he won't. Click on the link to see the supporting case evidence.

But this appointment was announced on Halloween, and another lawyer-writer, Dahlia Lithwick, picks up on that in Trick and Treat: Sammy Alito is the whole bag of goodies.

And she opens with the key ruling that seems to bother everyone -
So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey - which later became the case that reaffirmed Roe, Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion."

Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. Then Chief Justice Rehnquist quoted Alito's dissent in his own.
So Roe stood. He got slapped down. Rehnquist got outvoted.

And there's a lot of talk around this whole issue. Who owns the woman's womb and gets a say in any abortion decision? Is it fifty-fifty once you're married, and before that - if the woman is under eighteen - is the womb the property of the girl's parents and they get to decide? On the other side, if you make the assumption a fetus at any stage of development is really "a child," can a woman unilaterally kill a child without consulting the father? And so on. Alito may be on the side of those who say this should not ever be the woman's decision alone, or he may be just on the side of saying the Pennsylvania law is what it is and there's no issue here - and what's the big deal since there is "no burden" in multiple approvals or vetoes of what the woman decides? We'll see. (For a detailed discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey see Emily Bazelon here.)

Lithwick does point out some other decisions that may be a problematic from some lefty-types - "his vote to limit Congress' power to ban even machine-gun possession, and his ruling that broadened police search powers to include the right to strip-search a drug dealer's wife and 10-year-old daughter - although they were not mentioned in the search warrant."

He upheld a Christmas display against an Establishment Clause challenge. His prior rulings show that he would raise the barriers for victims of sex discrimination to seek redress in the courts. He would change the standard for analyzing race discrimination claims to such an extent that his colleagues on the court of appeals fretted that Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin, would be "eviscerated" under his view of the law. He sought to narrow the Family and Medical Leave Act such that states would be immune from suit - a position the Supreme Court later rejected. In an antitrust case involving the Scotch tape giant 3M, he took a position described by a colleague as likely to weaken a provision of the Sherman Antitrust Act to "the point of impotence."
If you read that all slowly you get the idea. He would not legislate from the bench to change laws to his whims. He'd just rule in ways that would make those laws about how to treat others - on matters of racial discrimination and sex and privacy, and keeping machine guns off the streets - meaningless. And he'd protect giant corporate monopolies. Congress has had too much power in this law-making business, after all.

What? What about all this blather about those evil, activist judges? Bruce Reed explains here -
What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.

The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing - and the left - to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Forget all that mumbo-jumbo about umpires and judicial restraint, Bush seems to be saying. The fans don't come out to watch everybody sit on the bench - they want to see a brawl that clears it.
And they'll get it, and everyone will forget Joe Wilson and his wife and which White House official goes to jail next.

See John Dickerson here -
Finally, the battle everyone has been waiting for. Since summer, Washington has been preparing for a Supreme Court brawl, a chest-beating showdown filled with sweeping displays of pettiness, small-minded political bickering, and explosive camera-luring rhetoric. John Roberts turned out to be too qualified for that. Harriet Miers wasn't qualified enough. Now, with the nomination of Samuel Alito, both parties can revert to type.

... Conservatives like political expediency when it's their interests that are being tended to. They may be needy these days, but they already seem to have forgiven Bush for wandering into the Miers cul-de-sac. The blast of e-mails supporting Alito as a strict constructionist was filling my inbox before breakfast. When Miers was nominated, approving testimonials started as a trickle and then stopped altogether. This time the e-mails have lots of chewy talking points, such as Alito's unanimous approval for the U.S. Court of Appeals by a Democrat-controlled judiciary committee and Senate in 1990.

The left is jumping on the case just as quickly. People for the American Way is boasting that it "will mobilize its 750,000 members and activists to wage a massive national effort to defeat Alito's nomination." It will "work closely with its coalition partners to educate Americans about the threats posed by this nomination." Those war rooms everybody readied during the summer look like they'll get some use after all.
Markos Moulitsas Zúniga over at The Daily Kos says this about what he's seen:
This is the tip of the iceberg - merely his court rulings. As the usual vetting process gets underway and people research his background, his writings, his speeches, and the testimony of colleagues, we'll get an even more complete picture of the man. But it's already obvious that the nuts got exactly what they wanted - a nut. Scalito is everything they hoped for and more.

But this is the best possible scenario for Democrats as well. We now have a vehicle upon which to showcase the differences between us and Republicans, between liberalism and conservatism. This is a golden opportunity, and one wisely denied by Bush and Rove with the Roberts and Miers nominations.

This is a gift to Democrats. Katrina, massive budget deficits, and continued economic hardship have proven that Republicans can't govern. Iraq, Plame, and Osama Bin Laden have proven that Republicans can't run an effective foreign policy or protect our nation. Now Scalito, along with Bush's social security debacle, will prove to the American people that conservative ideology doesn't have their best interests at heart.

Let the debate begin.
And so it has with this, with links to the case law, over at Think Progress -
ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias." [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any?cases would survive summary judgment." [Nathanson v. Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction." [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]
So you could go to this thing and drill down and read the decisions. Be an informed, and strange citizen. Or see this -
The poor man is being cruelly maligned and slandered by his unscrupulous feminist opponents.

Why, just last week Alito issued a decision in which he denied asylum to a Chinese woman who fled China because she had undergone a forced abortion and been ordered to report to a medical clinic for mandatory sterilization. Chen v. Gonzales, Slip Copy 2005 WL 2652051 (3rd Cir., October 18, 2005).

So take that, liberals! He's not anti-abortion at all! He's just against women having the right to choose abortion for themselves.
This will stay hot, for a day or two.

Blog notes, Monday, October 31, compiled by Reuters here:
"Judge Samuel Alito is everything that Harriet Miers is not. He brings extensive judicial experience - the most of any Supreme Court nominee in nearly 70 years - to the table. He has a clearly developed sense and theory of jurisprudence and Constitutional interpretation."
Pejman Yousefzadeh, Red State (

"Let's be clear what has happened here - George W. Bush was simply not allowed by the Extreme Radical Right Wing of his Party to choose the person he wanted for the Supreme Court. It is that simple."
Armando, Daily Kos (

"I'm very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the "Scalito" nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia."
Orin Kerr, Volokh Conspiracy (

"Every profile emphasizes his mild manner. So he's got the temperament of Roberts with the judicial philosophy of Scalia. From the point of view of the right: about as good as it gets."
Andrew Sullivan (

"Since Alito ruled against abortion rights in one of the most famous cases of all time, Planned Parenthood v. Casey, he ought to be practically a god to the social conservative right. No stealth candidate this time. The movement conservatives wanted a war, and this time they've probably gotten one. I guess Bush was itching for revenge after Scooter Libby got indicted."
Kevin Drum, Political Animal (

"This is a winning political move. Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito's dissent in Casey, the Dems will be forced by their groups to make abortion the issue. So if there is no filibuster, this is going to come off as a huge victory for the president."
Stanley Kurtz, The Corner (

"With the nomination of "Scalito", the political forces are arrayed for an Armageddon type court battle. After a brief diversion, the President has returned to the home base. The right is swooning and the left will be in a rage. The end-of-times battle has probably arrived."
"The Moose" (
But there is the real war, and the Fitzgerald investigation still not done, and Tom DeLay is still in court, and Bill Frist is still under investigation by the Securities and Exchange Commission. And Silvio Berlusconi made a Halloween visit to Washington, just after he said on Italian television that people had him all wrong. He only seemed to support the Bush war - actually had secretly and often tried to talk him out of it. No candy corn for Silvio. And the story of those forged Italian documents about Saddam buying uranium in Niger is getting more and more press.

It doesn't seem like there's enough controversy in this nomination - as much as there actually is - to keep the other news suppressed, especially if no hearings will come until late in the year and no vote until early next year. Maybe if the guy from New Jersey torn apart a live puppy on national television?

Well, it did make for a more interesting Halloween.


Footnote to Liberals:

Read this from Robert Gordon: Alito or Scalito? If you're a liberal, you'd prefer Scalia - "In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will."

Posted by Alan at 17:57 PST | Post Comment | Permalink
Updated: Tuesday, 1 November 2005 16:26 PST home

Friday, 28 October 2005

Topic: The Law

Broken Scooter: A Liar Indicted, Resigns from the White House, But No Fat Lady Sings

All day, Friday, October 28, the headlines were screaming about this (NY Times)
I. Lewis Libby Jr., Vice President Dick Cheney's chief of staff and one of the most powerful figures in the Bush administration, was formally accused today of lying and obstruction of justice in an inquiry into the unmasking of a covert CIA officer.

A federal grand jury indicted Mr. Libby on one count of obstruction, two counts of perjury and two of making false statements in the course of an investigation that raised questions about the administration's rationale for going to war against Iraq, how it treats critics and political opponents and whether high White House officials shaded the truth. The charges are felonies.

Mr. Libby was not charged directly with revealing the identity of a CIA undercover operative, the accusation that brought about the investigation in the first place.
And he resigned.

The second key figure in the two-year-old investigation, Karl Rove, the man some refer to as "Bush's Brain" - his chief advisor and strategist and life-long friend - was not charged with anything at all - but may be in the future. And Libby wasn't indicted specifically for the leak. Just for lying. Patrick Fitzgerald, the prosecutor in the matter, in his long news conference, said he was still working on matters, the facts of what happened.

So this was Scooter Libby's day. No more. No less.

The text of the indictment is here, and the video of the press conference here. The Wall Street Journal has an hour-by-hour timeline of the day's events here.

From here, just above Sunset, all the information and commentary is just overwhelming. Instead of reading everything posted in the media everywhere and writing, your editor, and associate editor, Harriet-the-Cat, watched the news folks on television doing their speculating before the announcement of the indictment, watched the news break, watched Patrick Fitzgerald do the news conference, then, on and off, watched the political commentary on Fox, CNN and MSNBC.

Two points here - 1.) All these people on television are old political hands, in the news business for many years, many of them having been in middle of things politically as members of this administration or that, and some are federal prosecutors or even targets of federal prosecutors, some are historians, and most personally know the key players, so they know far more about how these things work than some fellow in Hollywood, or his surly housecat, and 2.) The whole thing is a bit of a let down. All of the speculation, about this exposing Rove and Libby and maybe even the Vice President in some sort of loose conspiracy to not only break the law by exposing the secret agent to undermine the credibility of a troublesome critic of their effort to "sell" the war, but this even exposing a plot to lie to the American people to start a war, was all for naught.

All that conspiracy stuff may be quite true, and very plausible. But that's not what the issue was on Friday. This federal prosecutor announced he had indicted one key person at the White House for lying, in five felonious ways. He has misled the investigators and lied to the grand jury, and obstructed justice, as they say. This wasn't about the big issues, or even about the crime of exposing a covert agent. It was about a guy who "threw sand in his eyes" and, for now, kept the investigation from getting at what was going on.

Building on what Kevin Drum says here, the two "false statement" charges are that, first, this Libby fellow told the FBI that reporter-commentator Tim Russert told Libby about Valerie Plame - but Russert never told him this, and Libby knew about Plame's status long before that. Secondly, Libby told the FBI that he told Matt Cooper of Time Magazine that reporters had told him about Plame, and Libby said then told Cooper he didn't know if it was even true - but Libby actually confirmed "without qualification" to Cooper that Plame worked for the CIA. The two perjury charges? Libby said the same thing to the grand jury. The obstruction of justice charge is based on the false statement and perjury charges.

Basically, the charges are that Libby consistently tried to mislead both the FBI and the grand jury about how he had learned of Plame's status. On multiple occasions he told investigators that he had learned about it from reporters in July, but the truth was quite different. In reality, Libby actively sought out information about Joe Wilson's trip to Niger starting in late May; learned from both State Department and CIA sources in early June that Wilson's wife worked at the CIA; and received the same information from Dick Cheney shortly after that. Libby subsequently discussed Plame with quite a few people within the White House, at one point admitting to his deputy that "there would be complications at the CIA in disclosing that information publicly," an indication that he knew perfectly well that the CIA didn't want Plame's status disclosed. He later told Ari Fleischer that the fact that Joe Wilson's wife worked at the CIA was "not widely known."

These are serious charges. Apparently Libby figured he'd never be caught out because the reporters would stay mum and go to jail on his behalf. He lost that bet.
Yes he did. But it's not the big story everyone was expecting.

Of course, that the Chief of Staff to the VP, who is also National Security advisor to him and special assistant to the president, had to resign, is big news. He was lying about his efforts in this attempt to spread the word that Wilson's "secret agent wife" set this all up because the two of them hated Bush and wanted to expose the questionable rationale for the war. He got caught in the lying about the effort he was making, and not charged for the illegal effort itself.

It's a mess for the administration, but it could be worse. Think of it as being charged for lying about planning a successful bank robbery, but not being charged for the bank robbery.

And the indictment mentions one "Official A" who actually told Robert Novak about Wilson's "secret agent wife" setting up the trip, so that Novak would publish just that. Patrick Fitzgerald said that wasn't his topic today. One assumes that's Karl Rove. Maybe. The indictment mentions some "Under Secretary of State" who helped Libby track down information about Wilson's trip to Niger. Patrick Fitzgerald said that wasn't his topic today. One assumes that's John Bolton, our current UN ambassador. Vice President Cheney told Libby about Wilson and his wife, which implies he might have set up the whole thing. Patrick Fitzgerald said that wasn't his topic today.

This was a very narrow scandal. Was Libby guilty of any underlying crime in the case? Fitzgerald himself wasn't saying. Kevin Drum suggests Fitzgerald did have the goods on Libby but just decided not to bother trying to prove it in court - the idea there is that "the public interest in punishing the leak is served regardless of what charges are brought, so why waste time trying to prove a complex and precarious case of espionage or mishandling classified data when there's a nice easy perjury case to be made instead? Either way, the bad guy does the time."

No fun, but it worked in the case of Al Capone - they got him for tax evasion. And many say Fitzgerald reminds them of Elliot Ness.

Fitzgerald: "When citizens testify before grand juries they are required to tell the truth. Without the truth, our criminal justice system cannot serve our nation or its citizens. The requirement to tell the truth applies equally to all citizens, including persons who hold high positions in government. In an investigation concerning the compromise of a CIA officer's identity, it is especially important that grand jurors learn what really happened. The indictment returned today alleges that the efforts of the grand jury to investigate such a leak were obstructed when Mr. Libby lied about how and when he learned and subsequently disclosed classified information about Valerie Wilson."

Bad stuff. He lied to the grand jury and disclosed classified information, or so he is charged. He should resign. With such charges, and we'll see how this goes in court, unless he pleads out.

But it's a bit of a letdown. On the right, Glenn Reynolds here: "There's not even a charge of 'outing' a covert agent ... If there's no more, this will probably do Bush little harm." Well, Rove is still at risk, but things seem to be winding down.

So what can be added here? Just some observations.

First, this Patrick Fitzgerald is cool. He takes his job seriously, and, in spite of all the probing in the press conference, he explained, again and again, he would say no more. The principle is that what is presented to the grand jury, and what is investigated, must be secret. He cannot say anything else about anyone else he may or may not be investigating still - if the grand jury doesn't bring charges it's just not right to discuss what was investigated as a possible crime, because there was no crime. If there seems to be one, indictments will be handed up and made public. There will be charges. If there doesn't seem to be sufficient proof a crime may have been committed, you don't blab about what you were doing and mess with people's reputations. Good for him.

Now this may be fully justified -
Senate Minority Leader Harry Reid said the CIA leak case is about how the White House both "manufactured and manipulated intelligence'' to boost its case for the Iraq war.

Reid also said Libby's indictment shows the Bush administration tried to "discredit anyone who dared to challenge the president."

Senator John Kerry, meanwhile, is calling the CIA leak case "evidence of White House corruption at the very highest levels." The former presidential candidate says that's "far from the honor and dignity" Bush pledged to restore when he was elected five years ago.
But that wasn't what Fitzgerald was dealing with. He said it wasn't his business.

And Rove is still at risk. Note this from Jerry Bowles -
Like all fair-minded Americans, I'm disappointed that Karl Rove didn't get his comeuppance today, too. But, let's be honest. Scooter Libby is a much bigger fish than Rove. Libby's been at the epicenter of the whole let's invade Iraq movement since Bush Senior was booted out of office. He's a wall-to-wall neocon with real power to make policy. Karl is a bush (pun intended) league thug who got lucky, a Colonel Parker who found his Elvis and rode him into the big time. His symbolic worth in the eyes of us fair-minded Americans exceeds his true importance. And, cheer up; he may very well provide another occasion for celebration. Watching the prosecutor's news conference just now on CNN, I wouldn't want to be left to twist slowly, slowly in the wind with this guy Fitzgerald holding the rope.
One senses this is far from over.

Posted by Alan at 19:33 PDT | Post Comment | View Comments (1) | Permalink
Updated: Friday, 28 October 2005 19:36 PDT home

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