The Political Chase

Weighing the Court’s decision

Capital punishment is a highly controversial topic. And decisions like the Supreme Court made today are profound reminders to voters that they should carefully weigh their decisions about presidential candidates.

In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices.  The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

Justice John Paul Stevens will be 88 on Sunday. Also,  I’ve heard several sources say Justice Ginzberg is anxiously waiting the results of the election. She is 75. 

I’m embarrased to admit it — I know what type of justice John McCain would appoint, but I haven’t a clue what Obama or Clinton would do.

Reflection on Supreme Court ruling in Jefferson case

What relevance or significance might the Supreme Court ruling against the Justice Department in the William Jefferson bribery case have on lawmakers’ claims they could not expose Bush’s breaking of FISA laws because they would be violating the law?

The Court denied a Justice Department appeal of a lower court ruling that the FBI raid of Jefferson’s office had violated his rights under the Constitution’s Speech or Debate Clause. This would seem to be in context, at least somewhat, with a post I wrote a few months ago, where I quoted a law professor’s posit that lawmakers were not at risk of jail or fines if they blew the whistle on George Bush breaking of FISA laws.

To reiterate, Article I, Section 6 of the Constitution states:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(emphasis added)

Rep. Jane Harman (D-CA), Sen. Jay Rockefeller (D-WV), and others have claimed numerous times they were incensed when initially told by Cheney et al. in classified settings about Bush’s illegal wiretapping programs. But the Honorable Lawmakers claimed they were unable to publicly express their Righteous Indignation because they would be guilty of Treason or other Heinous Crimes if they adhered to their Oath.

Professor Michael Froomkin of the University of Miami School of Law disagreed. He writes:

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

Although Eric Lichtbau debunked Harman’s Righteous Indignation claims in his recently released book, the question remains – do lawmakers have more assurance of immunity considering the Court’s ruling today. My hunch is Professor Froomkin’s posit may have been further validated, but since I am not a constitutional lawyer, I am at best speculating.

Supreme Court Refuses to Hear Warrantless Wiretapping Case

(Update below)

The Supreme Court refused today to hear an appeal filed by the ACLU and others challenging the Bush administration’s warrantless wiretapping program.

The Supreme Court on Tuesday turned down a legal challenge to the warrantless domestic spying program President George W. Bush created after the September 11 attacks.

The American Civil Liberties Union had asked the justices to hear the case after a lower court ruled the ACLU, other groups and individuals that sued the government had no legal right to do so because they could not prove they had been affected by the program.

The civil liberties group also asked the nation’s highest court to make clear that Bush does not have the power under the U.S. Constitution to engage in intelligence surveillance within the United States that Congress has expressly prohibited.

Hardly the most welcome news nor is it surprising. George Bush will not let Congress review any documents related to the administration’s wiretapping program, therefore it is easy to see why the ACLU et al. may have not had sufficient evidence to prove they had been affected. Of course, that is broad speculation on my part because I have not read the complaint.

There are many other lawsuits is one lawsuit pending against the administration for its breaking of FISA-related laws, and this does not prevent them from being pursued on their respective merits, however it may make it harder for the plaintiffs to prevail against the administration. See update below.

Suffice it say, Bush is reaping the benefits he undoubtedly expected when he appointed Chief Justice Roberts and Justice Alito. And they’re relatively young, hence Bush Justice will be with us for decades to come.

Update:  It was my understanding there were multiple complaints brought against the administration by various plaintiffs, but that is inaccurate according to Glenn Greenwald. (Emphasis in original.)

This decision does mean, however, that EFF’s pending lawsuits in San Francisco against AT&T, Verizon and the other telecoms are now the sole remaining vehicle for finding out what the Bush administration actually did when spying on Americans for years without warrants, and as importantly, is the last hope for obtaining a judicial ruling as to whether the President broke the law and violated the Constitution when doing so.

TPC Afternoon Roundup - Global Criticism

HEADLINES

• Washington: Press questions Bush’s language skills; Military tribunals to continue
• Congress: Iran sanctioned; Children’s health care program extended
• Supreme Court: Voter-ID laws and lethal injections to be reviewed
• Iraq: Pending legislation regulating private companies; Killing Insurgents via “Baiting Program”
• Nation: Violent crime increases
• World: Bush announces sanctions at U.N.; Monk demonstrations continue

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WASHINGTON

• “White House spokeswoman Dana Perino on Tuesday called a question that indicated President Bush might have trouble pronouncing foreign countries’ names “offensive,” the Hill reports. “The issue arose after the United Nations posted a draft of Bush’s speech to the General Assembly on its website, complete with phonetic spellings of countries that the president spoke about.”
• “A special military appeals court, overturning a lower court ruling, on Monday removed a legal hurdle that has derailed war crime trials for detainees at Guantanámo Bay, Cuba,” the New York Times reports. “The ruling allows military prosecutors to address a legal flaw that had ground the prosecutions to a halt.”
• “The Bush administration took the gloves off Monday in its fight over immigration enforcement, suing the state of Illinois for banning use of a federal system that checks whether workers are in the United States legally,” the Los Angeles Times reports. “The United States of America vs. the State of Illinois is the latest court battle the administration is waging with immigrant advocates and business groups over its crackdown on workers here illegally and the companies that hire them.”

CONGRESS

• “Congress signaled its disapproval of Iranian President Mahmoud Ahmadinejad with a vote Tuesday to tighten sanctions against his government and a call to designate his army a terrorist group,” the AP via TPM reports. “The overwhelming bipartisan vote of 397 - 16 “reflected lawmakers’ long-standing nervousness about Tehran’s intentions in the region, particularly toward Israel _ a sentiment fueled by the pro-Israeli lobby whose influence reaches across party lines in Congress.”
• “Congressional Democrats unveiled legislation Tuesday to keep the government running until mid-November, giving them more time to bridge gaping differences with President Bush over the budget,” the AP via TPM reports. “the bill temporarily extends health coverage for children from low-income families as Congress and Bush wrangle over how much to expand the program, the State Children’s Health Insurance Program, or SCHIP.”
• “Republicans are decrying what they say are changes to newly enacted Senate earmark rules eliminating a ban on new earmarks being inserted into authorizing bills during conference,” Roll Call reports (sub. req.). GOP Members also complain “that key disclosure requirements that mandate Members publicly disclose who their earmarks will benefit and what the purpose of the spending is have been seriously weakened.”

SUPREME COURT

• “The Supreme Court agreed today to consider whether voter-identification laws unfairly keep poor people and members of minority groups from going to the polls,” the New York Times reports. “The justices will hear arguments from an Indiana case, in which a federal district judge and a panel of the United States Court of Appeals for the Seventh Circuit in January upheld a state law requiring, with certain exceptions, that someone wanting to vote in person in a primary or general election present a government-issued photo identification.”
• The Court also “agreed today to hear constitutional challenges brought by two death-row inmates in Kentucky, who assert that the state’s lethal-injection procedures amount to cruel and unusual punishment, the New York Times reports. “The step could have the effect of postponing executions across the country scheduled to be performed by lethal injection, the method is used by nearly all states with a death penalty, as well as by the federal government.”

IRAQ

• “The Iraqi interior ministry has said it has drafted legislation regulating private security companies following a shooting allegedly involving a US firm,” the BBC reports. “The new code would require contractors to be subject to Iraqi law and to be monitored by the Iraqi government.”
• “Under a program developed by a Defense Department warfare unit, Army snipers have begun using a new method to kill Iraqis suspected of being insurgents, using fake weapons and bomb-making material as bait and then killing anyone who picks them up, according to testimony presented in a military court,” the New York Times reports. “The existence of the classified ‘baiting program,‘ as it has come to be known, was disclosed as part of defense lawyers’ efforts to respond to murder charges the Army pressed this summer against three members of a Ranger sniper team.”
• “Sunni extremists appear to have begun a systematic campaign to assassinate police chiefs, police officers and other Interior Ministry officials throughout Iraq, with at least 10 attacks in the last 48 hours,” the New York Times reports. “Eight policemen have been killed, among them the police chief of Baquba in Diyala Province.”

NATION

• “Violent crime in the United States rose more than previously believed in 2006, continuing the most significant increase in more than a decade, according to an FBI report released yesterday, the Washington Post reports. “The FBI’s Uniform Crime Reporting Program found that robberies surged by 7.2 percent and homicides rose 1.8 percent from 2005 to 2006. Violent crime overall rose 1.9 percent.”
• “Investigators used a ruse to question a man later charged with aiding terrorists, an FBI agent testified Tuesday at a hearing over admissibility of the conversation and a search of the defendant’s luggage,” the AP reports. “FBI agent Michael Scherck said he and another law enforcement officer approached Ehsanul Sadequee as he got off a flight from Atlanta to New York on Aug. 18, 2005, and told him they wanted to talk to him about passenger complaints that he had acted suspiciously on the plane.” Instead, “Scherck said that in fact there were no complaints, but investigators wanted biographical information from Sadequee as part of a terrorism probe involving him.

WORLD

• Addressing the United Nations General Assembly today, President Bush “chided nations to live up to the rights and freedoms the United Nations promised six decades ago, announced new sanctions on Myanmar and denounced the governments of Belarus, Cuba, Iran, North Korea, Syria and Zimbabwe as ‘brutal regimes,’ ” the New York Times reports. The president “called on members of the United Nations to do more to support nascent democracies and to oppose autocratic and tyrannical governments.”
• “Tens of thousands of Buddhist monks and supporters today defied a government warning in Myanmar and returned to the streets for an eighth day of peaceful antigovernment protests, the New York Times reports. “For the first time since protests began on Aug. 19, the government began to issue warnings and to move security forces into positions in Yangon, the largest city and former capital.”
• “Iranians on Tuesday called the combative introduction of President Mahmoud Ahmadinejad by the head of Columbia University “shameful” and said the harsh words only added to their image of the United States as a bully,” AP reports. “In a region where the tradition of hospitality outweighs personal opinions about people, many here thought Columbia University President Lee Bollinger’s aggressive tone — including telling Ahmadinejad that he exhibited the signs of a ‘petty and cruel dictator’ — was over the top.”
• Former Pakistani Prime Minister Benazir Bhutto criticized U.S. support for President Gen. Pervez Musharraf as a strategic miscalculation,” the Los Angeles Times reports. “Backing Musharraf, a close U.S. ally who seized power in a 1999 coup, makes the fight against extremists operating along the Pakistani-Afghan border more difficult, she said today.”

SCANDALS

• A Minnesota judge will be hearing Sen. Larry Craig’s petition to overturn his guilty plea on a disorderly conduct charge in Minneapolis on Wednesday, but the Idaho Republican will not be at the hearing,” CNN reports. ” ‘I have been advised not to. I will not be attending,’ Craig said.”

Chief Justice Roberts Suffers Seizure

Chief Justice John Roberts was hospitalized this afternoon for a “seizure.”

The incident occurred around 2 p.m. EDT, on a dock near the home in Port Clyde on Maine’s Hupper Island. Roberts had just gotten off a boat and was returning home after running errands, Arberg said. Port Clyde, which is part of the town of St. George, is about 90 miles by car northeast of Portland, midway up the coast of Maine.

Roberts was taken by private boat to the mainland and then transferred to an ambulance, St. George Fire Chief Tim Polky said.

“He was conscious and alert when they put him in the rescue (vehicle),” Polky said. The hospital, in Rockport, did not immediately return a call from The Associated Press.

Chief Justice Roberts on Precedent

I mentioned earlier that Alito or Roberts gave compelling testimony on the importance of precedent. It was Chief Justice John Roberts that affirmed the assurance on respecting precedent.

“Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath.”

“The principles of stare decisis look at a number of factors. Settled expectations is one of them. Whether or not particular precedents have proven to be unworkable is another consideration on the other side–whether the doctrinal bases of a decision had been eroded by subsequent developments.”

“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough–and the court has emphasized this on several occasions–it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question; it just poses the question.”

“And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

“I know that the responsibility of a judge confronting this issue [abortion] is to decide the case according to the rule of law consistent with the precedents; not to take sides in a dispute as a matter of policy, but to decide it according to the law.”

It is a sad, sad day when the word of the Chief Justice of the Supreme Court is not worth squat.

The Real Legacy of George Bush

Arguably the issue Americans are concerned with today is the war in Iraq, and arguably conventional wisdom indicates Iraq — good or bad — will define George Bush’s legacy. Given recent Supreme Court rulings, I’m not so sure current conventional wisdom is accurate. A month or so ago, I would have challenged that statement. Twenty-five years from now, we may still be in Iraq, but certainly the conditions will have changed in some manner for the better. That is not to imply George Bush’s decision to invade Iraq made things better; it means somebody cleaned up his mess. But consider this. It’s safe to assume the decisions and outcomes related to Iraq will be determined and irreversible. In stark contrast to Iraq, the Supreme Court is a living, dynamic, organism. Some of the Justices will be rendering opinions 25 years from now. What impact will their decisions have on this country and society? Let’s hope recent decisions are not an omen.

Yesterday’s rulings literally stood the Court on its head. Parents Involved in Community Schools v. Seattle School District No. 1, not only erased the intent and basis of Brown v. Board of Education (1954), it slapped it in its face. I am still trying to grasp Chief Justice Roberts’ statement, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” If I even understand it, would that have worked in 1954, 1960, or 1970? Just let race discrimination take care of itself? Is he not basically saying, “OK, we trust you, be nice, do what is right - albeit not enforceable - and everything will be just fine.”

I may not have fully grasped Robert’s statement nor the logic associated with it yet, but I do know two things regarding racial discrimination. In many areas substantial progress has been made, but in some areas, it is worse today than it was 50 years ago. Discrimination is carried out differently, and is not limited to white people discriminating against people of color; it has reversed in some areas, although not necessarily the majority.

I make these allegations based on personal experience and observations. I have no scientific analysis to support them, but I do know what I see and experience. A brief example. The small rural town I grew up in was an excellent poster for discrimination. As a child, I saw crosses burned in front yards and churches burned to the ground. I basically left the town when I went to college, but moved back, temporarily, many years later. The first and most significant thing I realized about this town was how much worse discrimination had become. And, it was not limited to my hometown, the entire region (radius 100 miles) was the same.

If Chief Justice Roberts believes discrimination will regulate itself, he obviously doesn’t get out much.

While not as significant, relatively, as Parents v. Seattle, the Roberts ruling on Leegin Creative Leather Products, Inc. v. PSKS, Inc. wiped out 96 years of precedence (Dr. Miles Medical Co. v. John D Park & Sons Co.) that eliminated price fixing as specified in the Sherman act.

I can’t remember whether it was Alito or Roberts, but in confirmation hearings one of them obviously flat out lied. When asked about precedent, with an unspoken reference to Roe v. Wade, the nominee’s response was strongly worded to imply adherence to and respect for precedence. No specific promises were made, but the committee could readily infer recognition of the importance of precedence. So much for that. The Justice must have taken a few lessons from Mitt Romney.

I wish I could remember which nominee it was — I want to say it was Alito, because I remember Roberts being much more evasive and relying on his resume to carry him through the confirmation process.

Yes, Iraq will be part of George Bush’s legacy, but his lasting influence over the Supreme Court may be worse. Anybody who follows TPC knows that is a robust statement for me to make.

Gonzales: Judges should defer to the president

The Bush administration continues to assert its position of dominating and assuming the Constitutional powers of the legislative and judicial branches of government. In remarks given to the American Enterprise Institute (AEI), a prominent neocon think-tank, Attorney General Alberto Gonzales asserts the judiciary is not qualified to render opinions and should defer to the will of the President.

Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases.

Furthermore, Gonzales said:

[Outlining] what qualities the Bush administration looks for when selecting candidates for the federal bench…We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments. That, for example, a judge will never be in the best position to know what is in the national security interests of our country. (Emphasis added)

So, let me draw a very simple analogy that in its basic form is really no different than the scenario Gonzales criticizes. It is not national security by any means, but I could attempt to make the same argument.

Using Gonzales logic, the judge that presided over my very lengthy divorce and child custody trial was not qualified to render judgment. The judge would never really know, without doubt, what was truly best for my child. Nor did the judge have first hand knowledge of what transpired throughout my marriage or the intricate needs of my former spouse or myself. That notwithstanding, the judge decided the distribution of every single asset and liability. Just because the judge did not live with us and was not personally cognizant of all tangible and intangible elements related  to the matter, that did not lessen the judge’s qualifications or state constitutional authority.

Maybe we should have demanded the governor was more qualified to decide such matters.

Gonzales is out tooting his horn preparing for the pending Constitutional showdown between Congress and George Bush.

Criminal, ignorant or just plain stupid?

I don’t know what George Bush was taught in his high school civics class, but the role of each branch of government was clearly conveyed and easily understood in my civics class. Congress makes the laws; the Executive Branch administers the law; and, the Judicial Branch interprets the laws. Whatever was (or was not) taught to Mr. Bush, his disclosure yesterday of opening Americans’ mail further substantiates the imperialist president is not adhering to his oath of office and continues to arguably commit criminal acts ad nauseam. Furthermore, it is clear the President has been posturing himself for a defense of plausible deniability against any investigation Congress may initiate.

We are well aware of the Bush administration’s record of ignoring legislation passed by Congress, now there is clear evidence the President has fully assumed the role of the judicial branch - interpreting the laws of the United States. The President’s “signing statement” specifies numerous times that the executive branch “shall construe” multiple sections of H.R. 6407, the “Postal Accountability and Enhancement Act.” The most onerous assertion is:

The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Construe, by definition is “to adduce or explain the meaning of; interpret.” That definition bears no resemblance or inference to ”administer and execute,” which is the role of the executive branch.

Criminal, ignorant, or stupid? Well, the verbiage in Mr. Bush’s statement is a tad too high to profess stupidity, and as we all know, ignorance of the law is never an accepted excuse in the eyes of any court.

John Bolton unleashed FBI on adversarial Rehnquist witnesses

Newly released documents show John Bolton, then deputy FBI director, unleashed the FBI on witnesses that were perceived to be harmful to then Associate Justice William Rehnquist’s confirmation hearings to be Chief Justice of the Supreme Court. The documents also show the late Chief Justice’s coercive political behavior and drug addiction.

In July 1986, when President Ronald Reagan nominated Rehnquist to be chief justice, the Justice Department asked the FBI to interview witnesses who were preparing to testify that Rehnquist had intimidated minority voters as a Republican Party official in Arizona in the early 1960s. According to a memo in the Rehnquist file, an unnamed FBI official cautioned that the department “should be sensitive to the possibility that Democrats could charge the Republicans of misusing the FBI and intimidating the Democrats’ witnesses.” But then-Assistant Attorney General John Bolton — who more recently served as ambassador to the United Nations — signed off on the request and said he would “accept responsibility should concerns be raised about the role of the FBI.” It is unclear whether the FBI ever interviewed the witnesses.

Also in 1986, the FBI conducted an intensive investigation into Rehnquist’s dependence on Placidyl, a strong painkiller that he had taken since the early 1970s for insomnia and back pain. Rehnquist’s bout with drug dependence had been made public in 1981, when he was hospitalized for his back pain and suffered withdrawal symptoms when he stopped taking the drug.

The FBI’s 1986 report on Rehnquist’s drug dependence was not released at the time of his confirmation, though some Democratic senators wanted it made public. But it is in Rehnquist’s now-public file, and it contains new details about his behavior during his weeklong hospital stay in December 1981. One physician whose name is blocked out told the FBI that Rehnquist expressed “bizarre ideas and outrageous thoughts. He imagined, for example, that there was a CIA plot against him.”

The doctor said Rehnquist had also gone to the lobby in his pajamas in order to try to escape.” The doctor said Rehnquist’s delirium was consistent with him suddenly stopping his apparent daily dose of 1400 milligrams of the drug — nearly three times higher than the 500-milligram maximum recommended by physicians. The doctor said, “Any physician who prescribed it was practicing very bad medicine, bordering on malpractice.”

Judy Miller vs. Patrick Fitzgerald again

 U.S. Attorney Patrick Fitzgerald wants to examine Judy Miller’s telephone records for a terrorist related case dating back to December 2001. A federal appeals court in Manhattan has already ruled against Miller and Philip Shenon, another New York Times reporter. The New York Times asked the Supremes to review the case, and as expected, Fitzgerald submitted his case to the Supremes today.

Alito’s First Vote

Score one for Justice Alito.

Supreme Court Justice Samuel Alito split with the court’s conservatives in a death penalty case on his first day on the court.

Handling his first case, Alito sided with five other justices Wednesday evening in refusing to allow Missouri to execute inmate Michael Taylor.

Technorati Tags : Samuel+Alito, Supreme+Court, Michael+Taylor

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Alito is Confirmed

Samuel Alito dons a new robe and has a reserved seat at the State of the Union Address tonight.

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Deliberate Misreading of the Law

Check out this post from Glenn Greenwald. Greenwald’s profile: “Until this year, I was a litigator in NYC specializing in First Amendment challenges (including some of the highest-profile free speech cases over the past few years), civil rights cases, and corporate and security fraud matters.”

Excerpt from post:

Defenders of the Bush Administration are resorting to outright distortions and deliberate falsehoods about the Foreign Intelligence Security Act (FISA) in order to argue that the Administration’s warrantless eavesdropping on U.S. citizens complies with the mandates of that statute. To do so, they are simply lying — and that term is used advisedly — about what FISA says by misquoting the statute in order to make it appear that the Administration’s clearly illegal behavior conforms to the statute.

Read it all

Hat tip to Philocrites.

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Legal Precedent Against Spying

This may just burst Bubble Boy. SCOTUS ruled in a 1972 case, U.S. v. U.S. District Court, 407 US 297, that the president cannot authorize warrantless spying, even in the face of great harm.

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