Weekend Stories!

I thought I'd share a couple of stories that caught my eye this weekend.

1. http://lat.ms/alfJIW In this story, the LA Times reports on a US Army return to massive combat training in lieu of counterinsurgency. To quote from the piece:

"Writing recently in Foreign Affairs magazine, Defense Secretary Robert M. Gates said, "The United States is unlikely to repeat a mission on the scale of those in Afghanistan or Iraq anytime soon — that is, forced regime change followed by nation building under fire." Instead, U.S. forces will probably be called on to help other countries' armies defend themselves, particularly against terrorist attacks but also against conventional armies"

Seems to me to be a pretty big snub of the Bush-era nation building strategy evident in their post-invasion operations in Iraq and Afghanistan.

2. http://articles.latimes.com/2010/sep/25/local/la-me-gays-military-20100925 . This article discusses a district court's recent overturning of the discharge of Maj. Margaret Whit under DADT. Interestingly, the case was remanded to the District Court by the 9th District Court of Appeals after they said that the judge had to look at whether Whit individually endangered her unit and the army's cohesion and security interests. Judge Leighton found she did not. Alarmingly, the Obama administration argues that the ruling overturning DADT should only apply to Maj. Whit. This seems backwards from a history legal jurisprudence perspective (e.g. Brown vs. Board of Education)

Obama Administration Attacks Court Ruling Striking Down DADT

What. The. Hell. Isn't this the man claiming to be "fierce advocate" of gay rights?!

http://www.openleft.com/diary/20284/fierce-advocate-stirkes-again-once-again-gay-rights-targeted-not-defended

To quote the Open Left piece:

"the Log Cabin Republicans brought suit on behalf of their members in the military. So now the Obama DOJ is arguing that they're the only ones who could possibly be affected. Meaning, by analogy, that Brown v. Board of Education should only have desegregated those children who were plaintiffs in the suits combined under Brown."

If the Obama DOJ had its way, the USA would still have segregated schools.

State Secrets Upheld in Jeppesen Ruling, Will be Appealed to SCOTUS

Yesterday, the ACLU's team that was challenging a post-9/11 US program that flew terrorism suspects to secret prisons, suffered a major legal setback. Jeppesen, a Boeing subsidiary was contracted out by the CIA to conduct said flights. The ruling, which was handed down by the 9th district Court of Appeals, was divided 6-5 and narrowly upheld the state secrets doctrine used by the Bush Administration and now defended by the Obama DOJ. The case will undoubtedly be appealed to the SCOTUS, which in all likelihood will uphold the appeals' court's ruling.

In light of the recent developments Jeppesen case, I thought I'd share a couple of relevant links. In this first video from a panel hosted by the American Constitution Scoiety (ACS), Ben Wizner, the ACLU's attorney in the Jeppesen case, discusses state secrets and national security. This is back from 2008, but the points Wizner makes are the same as the ACLU made in Jeppesen

http://www.youtube.com/watch?v=FJpcq6VO7N4

Here are two other great clips of Wizner on MSNBC's Rachel Maddow Show:

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#29129616 - This one starts a little silly with a reenactment of a 9th circuit ruling on Jeppesen from 2009, but quickly gets serious as Wizner joins Maddow to discuss state secrets, national security and the details of the Jeppesen case. This clip is the only one I could find where Wizner specifically discusses Jeppesen.

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#31378360 - This clip has Wizner discussing the Bush Administration's state secrets doctrine. Wizner additionally provides proof of the use of State Secrets for political purposes.

Ben Wizner also came and spoke at Oxy in October 2009 about Jeppesen, the history of the state secrets doctrine, and ACLU involvement with other torture cases. I took extensive notes on the lecture/Q&A and posted them on my blog here: http://powertothepundits.blogspot.com/search/label/Ben%20Wizner

David Adler: The Q + A

After David Adler's Dec. 3rd lecture to Oxy's "American Presidency", which I blogged about last week, he had a Q+A session. I also got the chance to ask him several questions that focused more directly on torture and the constitution.

Here are some of the questions I asked and the responses I received from Prof. Adler. Because I did not have a recording device, I will be paraphrasing Prof. Adler's responses:

Q: In the last several months, the Obama administration has seen the resignation of several high profile officials who were involved with Guantanamo and Torture policy. The list includes such high profile individuals as Greg Craig (White House Counsel), Phil Carter (Detainee affairs policy appointee), and David Ogden (Deputy Attorney General). Do you think that this massive turnover in torture policymakers is indicative of a disagreement on torture in the Obama administration?

A: Adler does believe there is significant disagreement w/in the Obama admin. He believes that there is a significant push-pull between the Obama administration's desire to follow his campaign promises and Constitutional principles and political pressure from the military and party power brokers not to tackle the issue of torture. He believes Obama will eventually close Guantanamo Bay.

Q: Congress recently wrote legislation allowing the Defense Secretary to withhold photos of US-committed torture during the Bush years. The Supreme Court used this legislation as the basis to advise the 2nd District Court of Appealsto reconsider siding with the ACLU's FOIA suit. Is it unusual for the Supreme Court to rely on congressional legislation to make its legal decisions? Also, what effect does this have on the breadth and power of FOIA.

A: Adler replied that no, it's not unusual for the Court to use congressional legislation rather than just the Constitution and legal precedent. He also asserted that FOIA lost a massive amount of clout under the Bush administration, and he's hopeful that it will return to its previous prominence with the Obama administration's promises for open government.

Q: Why can Obama increase troop levels? Isn't that congress' role?

A: Adler agreed with me that this should be congress' call to make. Because of congress' ceding of war powers to the Presidency and the executive's role as the sole organ of foreign policy has resulted in the movement of war powers from the legislature to the executive.

Q: As a potential US Senate candidate and a Constitutional scholar, I have to ask you abut the institution of the Senate itself. Considering the filibuster fiasco and other undemocratic elements (e.g. unequal representation of states) of the Senate, do you think fundamental changes nead to be made to the institution?

A: Adler believes that while the filibuster may have been useful during the civil rights era, it no longer serves a valid purpose. He would advocate the filibusters' elimination if elected. He doesn't believe that the Senate needs to be eradicated in the name of democracy.


And 3 questions from the class:

Q: If not Iraq, what will it take to get the American public to embrace a Constitutional culture?

A: Adler responded that he didn't know, but re-emphasized education.

Q: Is Obama surging in Afghanistan due to political pressure.

A: Adler has immense respect for Obama's character and thinks he makes extremely deliberative decisions that are not motivated by concerns for his legacy. Though he doesn't agree with the Afghanistan surge, he thinks that Obama is doing what he perceives to be the best and most rational course of action within a very poor set of circumstances.

Q: If you run for Senate, will you devote precious campaign time and resources to making a return to constitutional governance a major campaign cornerstone?

A: Adler reasserted that it will be a top priority for him both on the campaign trail and off.


Thanks a million to Professor Adler for answering so many of my questions and giving his time to our class! I wish him the best of luck, and know he will make an excellent Senator from the great state of Idaho.

David Adler: The Constitutional Presidency, Obama and Torture

On Thursday December 3rd, Oxy's American Presidency class was visited by decorated constitutional scholar David Adler. David Adler is an expert on the American presidency and constitutional law and is a professor at Idaho State University. He is also actively considering running against Sen. Jim Risch (R-ID) in 2014. Imagine that, someone in congress who is an expert on the constitution.

A selection of some of the points he made in his talk about presidential power:

• Power abhors a vacuum. Congress relinquishes its powers and the president usurps them . The courts have failed to rein in the unconstitutional expansion of presidential power. In other words, congress has willingly abdicated responsibility to its constitutional role. This runs directly contrary to the Supreme Court's 1819 ruling in McCulloch v. Maryland which mandated that congress alone fulfill its constitutional rule.

• Since the Korean War, all presidents have claimed unilateral power to go to war. The only exceptions have been Eisenhower and (though with some debate) Obama. To return to a constitutional presidency, we would have to return to a pre-Johnson style of presidential role.

• The standard remedies to the excesses of presidential power are at best infeasible. Obama or any other president is unlikely to actually relinquish their own power. If they were to do so, they would be labled as "feminine" and "weak. The Supreme Court is also unlikely to reestablish a constitutional presidency, as indicated by its frequent decisions to hold up presidential power in foreign policy (e.g. United States v. Curtiss-Wright Export Corp.). Congress, the institutional body that would seem to be the most interested in reaquiring their own constitutional power, is also unlikely to be the agent that effects this change. Primarily obsessed with their own reelection prospects, many congressmen view taking on the president on matters of foreign policy to be political suicide.

• The standard arguments about why the president should be the "sole organ" of foreign policy are bunk. He/she doesn't necessarily have more foreign policy knowledge than members of congress. The main reason the president might have a higher level of knowledge of current foreign policy information is because congress has structured the flow of information such that it flows through the executive before going to congress (if ever). Congress in the early days of the nation passed a law requiring that the executive branch had to share all of its knowledge with congress. This was passed with the support of Madison, Washington, and even Hamilton, perhaps the biggest founding supporter of executive power. In short, congress' lack of foreign policy clout is because it has artificially and unconstitutionally transfered that responsibility to the presidency.
  

• The solution to all this? Adler identifies the 3 C's: Constitutional culture, Constitutional consciousness, and Constitutional conscience. Adler believes that ultimately Americans must be educated from the ground up and reminded what a society without rule of constitutional law looks like. Once we've been educated enough to have a culture that prioritizes constitutional values, Adler argues we will have the consciousness to monitor government actions for excessive exercises of power and have the conscience to speak out against said abuses.
  

I had the opportunity after the lecture to ask Prof. Adler several questions about presidential power and torture 1-on-1. Stay tuned for a summary of that session as well as my own analysis and reflection!

Supreme Court Rejects Appeals Court Ruling Ordering Release of Torture Photos

There is another frustrating setback in the torture photos saga that started on May 13th when the Obama administration reversed its decision to release a substantial number of new Abu Ghraib photos to the public. As reported today by the New York Times, the Supreme Court nullified the 2008 ruling by the Manhattan Second Circuit Court of Appeals that ordered the photos be released to the public. The Supreme Court has today kicked the ruling back to the Appeals Court, asking, as the Times put it, that it "give 'further consideration' to the issue in light of a Congressional action authorizing the Defense Department to keep the pictures from the public."

As a constitutional law dork, I have to ask why the Supreme Court would pay any heed to Congressional legislation in its rulings. Supreme Court cases deal by definition with matters of strictly constitutional law. If our system of checks and balances is to be believed, as articulated in Marbury v. Madison, it is the within the purview of the Court to curb Congressional action, not vice versa. The Court since its inception was meant to stand as an antimajoritarian counterweight to the executive and legislative branches. It is the Supreme Court's most basic duty in this case to authoritatively decide whether or not it is constitutional to withhold the torture photos as so-called "state secrets". If the Court is unwilling to fulfill its basic constitutional obligation to decide cases on the basis of constitutional law alone in this case, it should have not granted cert. to the case. Rather than subvert their own constitutional role, the Supreme Court could have simply let the Appeals Court ruling stand.

Sadly, the constitution sadly doesn't seem to be the center of this debate. My fingers are crossed that the hard work of the ACLU and their allies will be sufficient enough to convince the Appeals Court once again that the constitution still matters. Maybe then will we get the photos, and with them another step towards truth, justice, and accountability.

Return to the Rule of Law?

Breaking News: Khalid Sheikh Mohammed and 4 other men accused of involvement in the 9/11 attacks will finally be put on trial in NYC. Unfortunately, it was also announced that 5 other men will face military commissions. Regardless, though this is specifically being politically framed as bringing the 9/11 perpetrators to justice, it is a massive step in favor of law and order. President Obama is finally fulfilling President Bush's promise to bring the accused 9/11 conspirators to justice. This is a huge political risk for President Obama. If successful, the trials will make him a man of justice, and if plagued by complications from US-committed torture could be a major political albatross.

The GOP of course, is outraged. Surprise, surprise. Some pretty crazy things are being said by individuals such as Sen. Jeff Sessions and Sen. John McCain, but the crown jewel of crazy goes to former NYC Rudy Giuliani, who said on Fox that "We think they're criminals! These are soldiers in a war against us; and the rules of war should apply." Apparently the new chapter in Republican revisionist history is that we have treated these men as "prisoners of war" and should continue to do so. If they're POWs, the Geneva Conventions apply. Are you and the Republican party willing to accept that Mr. Giuliani? The hypocrisy of these men is astounding, as they flood the media with the message that these accused terrorists are POWs and hence can't be tried in civilian court. A reminder to Mr. Giuliani, Sens. McCain and Sessions and their ilk: it was you who supported the declassification of these men as POWs and the creation of the "Geneva Convention-immune" classification of "enemy combatant". You cannot call them POWs again out of convenience after 8 years of illegal detention, torture and Geneva Convention violations. That is revisionist history and blatantly deceptive.

Additionally, the Republicans seem to be arguing that the US courts are incapable of dealing with terrorism cases. As Rachel Maddow pointed out tonight, this is an absurd proposition. We've imprisoned Charles Manson, the "blind sheik", the "unabomber", the "shoe bomber" and even another 9/11 conspirator through the federal courts. This, as Maddow points out, is sheer cowardice.

I would go further than Maddow does though and outline the political implications of these proceedings for Republicans. I believe that the Republicans do have legitimate reasons to be afraid, though not for the safety of the American people. Rather, the Republicans are all too aware that these trials for the first time will allow the Guantanomo detainees to testify in a real American court about the torture they were subjected to at the hands of the US. No longer will the culpability of the Bush White House's torture program be shielded by a censor and thick glass, as Wizner described it as being in the Gitmo military tribunals. If the details of detainees gruesome torture at the hands of US operatives becomes public, Republicans could be forced to answer for the Bush administration's actions. I'd be panicking if I were them too.

For this blog, the timing of this decision couldn't be better. In my recent posts on Ben Wizner's talks, I quoted him as saying that "[state] secrecy is the source of rot". If AG Holder is serious about these prosecutions, and the accused 9/11 conspirators are only the first of many to face constitutional justice, our long national nightmare of secret torture may finally come to an end. That end is still a long way off, but today marks a historic first step. Friday night is when the most contentious policies are always announced (nobody listens to the news Friday night. Except me.), but this story will hopefully dominate the news for a long time.

Further Viewing:

On the decision to put the 5 men on trial and Republican outrage:

Visit msnbc.com for Breaking News, World News, and News about the Economy

On the challenges facing the court and a possible referendum on the Bush torture policy:

Visit msnbc.com for Breaking News, World News, and News about the Economy

Ben Wizner pt. 3: Q+A Session (Oct. 23)

In the Oct. 23rd conversation our class on torture had with ACLU attorney Ben Wizner, we discussed in greater detail and specificity the legal issues regarding torture. We covered a large range of topics, but with an emphasis on state secrets and the classification of the so-called "enemy combatant". Here are some of the gems of knowledge Wizner shared with us:

On State Secrets:

• In relation to torture: "secrecy is the source of rot".
  

• Secrecy and abuse are cyclical: State secrecy sets the stage for torture. Torture creates the need for state secrecy. Etc. etc.

• Though there are legitimate state secrets (e.g. military technology in wartime), secrecy must be balanced with the need for an open government of and for the people. State secrets have been abused since their very inception, as evidenced by the pentagon papers. The pentagon papers were held secret on the grounds of national security when ultimately it was revealed that they were kept secret because they were a political liability. Governments have an irresestible temptation to use state secrets for political ends, and this is where the courts must intervene.

On FOIA:

• Between 2000-2006, FOIA was the only oversight of the Presidency. The Republican controlled congress did not perform it's constitutional duty.
  

On the Gitmo Military Tribunals:

• "Secret people, secret laws, secret proceedings". Enemy combatants, being tried under "state secrets protected" secret laws, and the few human rights representatives present could only watch through a soundproof screen. Indeed, they had a censor at the ready to bleep out anything a detainee could say regarding his treatment in Gitmo.

• The tribunals, according to Wizner, were "not about keeping information from terrorists, but about keeping information from the American people.

• The purpose of the courtroom was to prevent testimony about torture from leaving it. The detainees were allowed to talk about martyrdom and other purported evils of the US, and indeed even call for direct assaults on the nation. But when they talked about their treatment in Gitmo, they were censored. In other words, they were allowed to call for assaults on the US, but it was far more important that evidence of US torture be kept secret.

On the So-Called "War on Terror":

• Bush: the "War on Terror" is not a normal war. Enemy combatants are not normal enemies. There are no rules for enemy combatants beyond what we make up. Even individuals acquitted by the Bush-created tribunals remained enemy combatants.
  

• Where Bush argues no laws apply to enemy combatants, as they are a new class of enemy, Wizner argues that they have additional protections. They are both private citizens and enemy fighters. Both criminal laws and rules of combat (e.g. Geneva Conventions) apply.

Question and Answer:

• Wizner opposes a truth commission. Such a commission assumes we all agree that torture occurred. As congressional Republicans exemplify, we do not.

• The rule of law is diminished by the 24-hour news cycle. He-said she-said partisan standoffs always assume two sides to any issue. In other words, the mass media legitimizes fringe believers in the usefulness of torture.

• Wizner hopes that congress will pass legislation defining, and hopefully limiting, the breadth of executive "state secrets".

This is the final installment in the Wizner Talks! Here are the earlier installments: Part 1 and Part 2 .

FOIA Limited Once Again

It appears unfortunately that the DOD can now exempt torture testimony from FOIA requests. The testimonies that Gitmo inmates gave before the military tribunals is being guarded on the grounds that it protects “intelligence sources and methods” and might aid enemy "propaganda". I, like the ACLU, call BS on that one. The most important eyewitnesses of the US torture program, the torturees themselves, are still being censored by the DOD and the CIA.

September Torture News Round-Up

1. Legal News: Spanish Court asking US DOJ for info on Bush-era Torture Practices: The Spanish Court, which announced its intent to investigate Bush administration officials on their role in the US torture program, is now officially requesting new information from the Holder DOJ.Though many cry foul at the Spanish investigating the US, the "Audiencia Nacional", or Spanish National Security Court maintains jurisdiction because Spanish citizens were some of the victims of the torture program. How the Holder DOJ responds is anybody's guess (mine is they won't), but this is the story to watch as an indicator of international legal momentum on the US torture program.

On a more frustrating domestic note, GOP senators have pulled out of the inquiry into the CIA torture plan. Apparently they are so outraged by Holder's decision to investigate the torture program that they refuse to take part in the Senate's effort to investigate the torture program. Huh?

2. Bagram News: The US has issued new guidelines granting significantly more rights to prisoners being held at Bagram Air Base in Afghanistan. Each detainee is being assigned one military official who will gather witnesses and evidence. They still don't get Geneva rights, lawyers or habeus corpus, but it's a step in the right direction.

3. Gitmo News: Some huge news on the Gitmo front. Apparently the January deadline that Obama set for closing Gitmo in the beginning of his presidency is no longer hard. Obama says he's committed to closing the prison, but that more time will be needed to process all the cases. According to Secretary of Defense Robert Gates, the deadline was good politics but "it's going to be tough" to meet the January deadline. As much of a blow as this is to those of us who think that the time to close Guantanamo for Obama was when he took office, he's at least releasing 75 of the 223 prisoners still in Gitmo. Though the prisoners still are being denied their basic rights, it's a relief to see that steps are being taken towards their release.

Obama DOJ Supports DOMA

This is so disgusting it's hard to even rant about:

http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html

What a kick in the gut. The Obama administration has pulled the rug out from under the LGBT community. Rick Warren. Then no action on Don't Ask Don't Tell. Now his DOJ defends DOMA with the fervor of Pat Robertson. The administration claims it has to defend DOMA (bullshit), but do they have to compare gay marriage to incest and child molestation? He even went so far as to outright say that Loving v. Virginia which overturned anti-miscegenation laws has nothing to do with gay marriage and should be no defense for us.

Obama described himself in his campaign as a "fierce advocate" of gay rights. His administration's actions reveal instead pure bigotry. Even if Obama didn't mean what his DOJ said to the court (impossible for such a tightly controlled machine like the Obama administration), these words will provide strong ammunition against Obama if he ever does take a stand.

Awful, unconscionable, and absolute betrayal. Shame on you President Obama and your Department of Justice.

Cute Leopards

We won a rare legislative victory in Vermont. Though the issue is on the agenda in many state legislatures, I expect most victories to follow the Iowa model of court action. To sum up the last couple days in civil rights history, some pictures:





"Zhang Jie and Zhongni, two of only 100 endangered North China leopards in capitvity" via the BBC =). More pictures of them at http://www.zimbio.com/pictures/E7fdpa-H1OL/Animals+Of+Hamburg+Zoo/MZ_5mXw4UXO .

Awwwwww!

Is gay marriage here to stay in Iowa?

Over at Fivethirtyeight.com, everyone's favorite nerd Nate Silver has a fantastic article up on the future of gay marriage. Using his fantastic regression model based off of electoral history of anti gay marriage citizen initiatives and the population of evangelical Christians in each state, Silver projects the year in which puplic opinion will shift enough that each state will vote down a ban on gay marriage. By his theory, such a ban would fail in 2010 in California and fail in 2013 in Iowa barring any major public opinion shifts. If the Iowa state legislature moves against the ruling right away, it could be on the ballot potentially by 2012, in which Silver predicts that it would pass. The sunny side of this though is that the Iowa state legislature isn't exactly raring to go on this one. One possible reason? Having gay marriage on the table in an election would dramatically shift Iowa's caucus landscape for the 2012 elections to the right, something the Democratic controlled legislature would love to avoid. With any luck, the legislature won't move against the court's ruling, and the marriage rights of Iowa's LGBT population will be there for good.

Iowa and Gay Marriage

As most of you probably know already, On April 3, 2009, in Varnum v. Brien, the Iowa Supreme Court unanimously affirmed that banning same-sex marriage is unconstitutional, overturning a statewide "Defense of Marriage Act" in 1998. This ruling is a momentous occasion and a great victory for the LGBT rights movement. Additonally though, this terriffic ruling is a reminder of the clout of the courts. While LGBT rights have been undermined again and again in state legislatures and in citizen initiatives/propositions, the courts remain our staunchest ally within the government. Though it may take more than a decade, with a strong grassroots movement we can shift public opinion and bring about equality for all.

CA Supreme Court hearings on Prop. 8 This Thursday!

The wonderful Emma Ruby Sachs has an awesome article up on HuffPo summarizing how the trial will proceed on Thursday. The convoluted California constitutional law at work in this case is fascinating. Definitely check it out!

You can watch the proceedings at http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8viewing.htm this Thursday! History in the making folks!