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October 29, 2008

What About Constitutional Powers?

Institute for Public Accuracy
915 National Press Building, Washington, D.C. 20045
(202) 347-0020 * http://www.accuracy.org * ipa@accuracy.org
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Wednesday, October 29, 2008

What About Constitutional Powers? Two Views

MARJORIE COHN, Libertad48@san.rr.com, http://www.marjoriecohn.com
Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.” She recently wrote the piece “A Palin Theocracy.”

Cohn said today: “The next president will almost certainly appoint one to three justices to the Supreme Court, which is now delicately balanced politically. The most likely justices to retire are John Paul Stevens, Ruth Bader Ginsburg and David Souter. John McCain, who voted to confirm Robert Bork, Clarence Thomas, John Roberts and Samuel Alito, has vowed to appoint more justices like Roberts and Alito to the high court.

One McCain appointee would tip the balance of the Court to the right which would likely overturn Roe v. Wade and decisions protecting the rights of workers and the environment, and decisions curbing the power of the executive. Barack Obama voted against the confirmation of Roberts and Alito, and has promised to appoint justices like Ginsburg and Stephen Breyer. Even if Obama made three appointments, he would not tip the political balance of the Court to the left, but would maintain the status quo since he would likely be replacing the ‘liberals.'”

BRUCE FEIN, bruce@thelichfieldgroup.com
Author of the new book “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy,” Fein said today: “It’s disgraceful that core constitutional questions have been virtually ignored in this election. Neither McCain nor Obama have indicated that they will move to a constitutional government and away from executive government.

“They have both said they would close Guantanamo, but that’s really meaningless since they both assert the right to hold so-called ‘enemy combatants’ without charge, so they could simply move the people being detained to another facility.

“Both maintain that the executive can initiate war. Both — like Bush now — have said that they would not allow further waterboarding and that it is torture, but neither has said that they would prosecute the conceded waterboarding of the Bush administration. Likewise, neither has said they would prosecute members of the current administration for other criminal conduct, such as well-known criminal violations of the FISA statute. Neither Obama nor McCain has disclaimed the authority claimed by Bush to order current or former White House officials to defy congressional subpoena.”

Fein recently wrote the piece  “Palin vs. Palin.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167

September 11, 2008

A Palin Theocracy

John McCain’s selection of Sarah Palin as his vice presidential running mate has invigorated a lackluster campaign. The media can’t stop talking about her. Given McCain’s age and state of health (his medical file was nearly 1,200 pages long), Palin would indeed be a heartbeat away from becoming President. But what would a Palin administration really look like?

Palin is a radical right-wing fundamentalist Christian who would love to create a theocracy. She believes we are living in the “end times” which will result in a bloody inferno from which only true Christians will be saved. Palin recently attended a service in her Wasilla Bible Church run by David Brickner, who runs Jews for Jesus, a group the Anti-Defamation League criticizes for its “aggressive and deceptive” proselytizing of Jews. Those who don’t accept Jesus as their savior will burn in Hell, according to Palin’s brand of theology.

As Governor of Alaska, Palin asked her congregation to pray for the natural gas pipeline, which she characterized as “God’s will.” She also asked them to pray that the war in Iraq is a “task that is from God.” Palin has pushed for creationism to be taught in schools, and she opposes stem cell research.

Palin’s choice to have a Down syndrome child and her teenage daughter’s choice to continue her pregnancy have made right-wing evangelical Christians ecstatic. But while she chose pregnancy, Palin would deny a woman victimized by rape or incest the right to choose abortion, and then criminally punish both the woman for having one and her doctor for performing it.

McCain would also love to inject a heavy dose of Christianity into his administration. A year ago, he declared, “The Constitution established the United States of America as a Christian nation.” Just about the only issue on which McCain has not flip-flopped is his opposition to abortion rights. The next president will almost certainly make at least one appointment to the Supreme Court. McCain has pledged to appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito; these would also be Palin’s preferred judges. Another conservative on the Court would mean that Roe v. Wade will be overruled. That will return us to back alley abortions with coat hangers.

Rick Davis, McCain’s campaign manager, said that “this election is not about issues . . . This election is about a composite view of what people take away from these candidates.” The Republicans know they will lose if they really focus on issues such as the economy, the war, healthcare, education, and the environment. They are hoping that pro-choice women who supported Hillary Clinton will gravitate to Palin because she’s a feisty – albeit anti-choice – woman. They are also banking on support from people who cannot bring themselves to vote for a black man.

But those non-evangelicals who back the McCain-Palin ticket do so at their peril. Not only will they continue to suffer four more years of the disastrous Bush policies; they will also find themselves living in a Christian theocracy.

September 2, 2008

Preemptive Strikes Against Protest at RNC

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called “Moles Wanted.” Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by “teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets.” Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

“I was personally present and saw officers with riot gear and assault rifles, pump action shotguns,” said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. “The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint.”

The raids targeted members of “Food Not Bombs,” an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. “Seizing boxes of political literature shows the motive of these raids was political,” he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, “Normally we only board up buildings that are vacant and ramshackle.” Thune and fellow City Council member Elizabeth Glidden decried “actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights.”

“So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do,” Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with “conspiracy to commit riot,” a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it “basically criminalizes political advocacy.”

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday’s demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show’s producers, Abdel Kouddous and Nicole Salazar. “St. Paul was the most militarized I have ever seen an American city to be,” Greenwald wrote, “with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations.”

Bruce Nestor said the timing of the arrests was intended to stop protest activity, “to make people fearful of the protests, but also to discourage people from protesting,” he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

July 30, 2008

End the Occupation of Iraq – and Afghanistan

So far, Bush’s plan to maintain a permanent U.S. military presence in Iraq has been stymied by resistance from the Iraqi government. Barack Obama’s timetable for withdrawal of American troops has evidently been joined by Iraqi Prime Minister Nuri al-Maliki, Bush has mentioned a “time horizon,” and John McCain has waffled. Yet Obama favors leaving between 35,000 and 80,000 U.S. occupation troops there indefinitely to train Iraqi security forces and carry out “counter-insurgency operations.” That would not end the occupation. We must call for bringing home – not redeploying – all U.S. troops and mercenaries, closing all U.S. military bases, and relinquishing all efforts to control Iraqi oil.

In light of stepped up violence in Afghanistan, and for political reasons – following Obama’s lead – Bush will be moving troops from Iraq to Afghanistan. Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans see it as a justifiable response to the attacks of September 11, 2001, and the casualties in that war have been lower than those in Iraq – so far. Practically no one in the United States is currently questioning the legality or propriety of U.S. military involvement in Afghanistan. The cover of Time magazine calls it “The Right War.”

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the Council passed two resolutions, neither of which authorized the use of military force in Afghanistan. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Bush’s justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and he was given safe haven in the United States. The people in Latin American countries whose dictators were trained in torture techniques at the School of the Americas could likewise have attacked the torture training facility in Ft. Benning, Georgia under that specious rationale.

Those who conspired to hijack airplanes and kill thousands of people on 9/11 are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by invading Afghanistan is not the answer and will only lead to the deaths of more of our troops and Afghanis.

The hatred that fueled 19 people to blow themselves up and take 3,000 innocents with them has its genesis in a history of the U.S. government’s exploitation of people in oil-rich nations around the world. Bush accused the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was destroyed. It was the World Trade Center – symbol of the U.S.-led global economic system, and the Pentagon – heart of the U.S. military, that took the hits. Those who committed these heinous crimes were attacking American foreign policy. That policy has resulted in the deaths of two million Iraqis – from both Bill Clinton’s punishing sanctions and George W. Bush’s war. It has led to uncritical support of Israel’s brutal occupation of Palestinian lands; and it has stationed more than 700 U.S. military bases in foreign countries.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred and a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who despise American imperialism. The “global war on terror” has been uncritically accepted by most in this country. But terrorism is a tactic, not an enemy. You cannot declare war on a tactic. The way to combat terrorism is by identifying and targeting its root causes, including poverty, lack of education, and foreign occupation.

There are already 60,000 foreign troops, including 36,000 Americans, in Afghanistan. Large increases in U.S. troops during the past year have failed to stabilize the situation there. Most American forces operate in the eastern part of the country; yet by July 2008, attacks there were up by 40 percent. Zbigniew Brzezinski, national security advisor for Jimmy Carter, is skeptical that the answer for Afghanistan is more troops. He warns that the United States will, like the Soviet Union, be seen as the invader, especially as we conduct military operations “with little regard for civilian casualties.” Brzezinski advocates Europeans bribing Afghan farmers not to cultivate poppies for heroin, as well as the bribery of tribal warlords to isolate al-Qaeda from a Taliban that is “not a united force, not a world-oriented terrorist movement, but a real Afghan phenomenon.”

Indeed, on July 29, 2008, the RAND corporation released a report that argues that, “Current U.S. strategy against the terrorist group al Qaida has not been successful in significantly undermining the group’s capabilities.” The United States should pursue a counterterrorism strategy against al Qa’ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force, according to RAND.

We might heed Canada’s suggestion that a broader mission, under the auspices of the United Nations instead of NATO, would be more effective. Our policy in Afghanistan and Pakistan should emphasize economic assistance for reconstruction, development and education, not for more weapons. The United States must refrain from further Predator missile strikes in Pakistan, and pursue diplomacy, not occupation.

Nor should we be threatening war against Iran, which would also be illegal and result in an unmitigated disaster. The U.N. Charter forbids any country to use, or threaten to use, military force against another country except in self-defense or when the Security Council has given its blessing. In spite of the U.N. International Atomic Energy Agency’s conclusion that there is no evidence Iran is developing nuclear weapons, the White House, Congress, and Israel have continued to rattle the sabers in Iran’s direction. Nevertheless, the antiwar movement has so far fended off passage of HR 362 in the House of Representatives, a bill that is tantamount to a call for a naval blockade against Iran – considered an act of war under international law. Credit goes to United for Peace and Justice, Code Pink, Peace Action, and dozens of other organizations that pressured Congress to think twice before taking that dangerous step.

We should pursue diplomacy, not war, with Iran; end the U.S. occupation of Iraq; and withdraw our troops from Afghanistan.

June 26, 2008

John Yoo, David Addington Stonewall Congress

JOHN YOO, DAVID ADDINGTON STONEWALL CONGRESS; NATIONAL LAWYERS GUILD URGES SPECIAL PROSECUTOR, CONGRESSIONAL WAR CRIMES COMMISSION

Today the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties continued its investigation into the role played by key administration lawyers in the development of aggressive interrogation techniques. This was the third hearing of this subcommittee on this topic. The witnesses who testified were former Department of Justice lawyer John Yoo; Cheney’s former legal counsel and now chief of staff, David Addington; and Christopher Schroeder, professor at Duke Law School.

NLG President Marjorie Cohn had testified at the first subcommittee hearing on May 6, articulating the law of torture, and stating that torture is never allowed under U.S. law. Today’s hearing was attended by Jeanne Mirer, co-chair of the NLG’s International Committee.

Yoo’s testimony revealed that the guiding principle of his work at the Justice Department was his belief in the overriding power of the President to order anything he thinks necessary in the “war on terror.” When specifically asked, “Is there anything that the President cannot order?” Yoo answered “I believe there are things an American President WOULD not order.” He was asked again, “Are there things the President COULD not order?” Yoo replied that he would “have to know the context.” Dan Mayfield from the NLG Military Law Task Force stated, “This is consistent with Yoo’s previous statement that the President could order torture of a person up to and including the crushing of the testicles of a person’s son in order to make the person talk.” When asked whether a President could order that someone be buried alive, Yoo’s answer was non-responsive: “No American president would ever have to order that,” he said.

While Yoo claimed there was little in the law which helped to define torture, Shroeder pointed out the wealth of guidance that exists in the areas of asylum and immigration law. Yoo admitted that the Convention Against Torture and the U.S. Torture Statute both define torture. Yet he wrote his memos to re-define torture so that those following his re-definition could state, “We do not torture.” Marjorie Cohn said, “Yoo’s memos so vastly narrowed the definition of torture, the interrogator would nearly have to kill someone for it to constitute torture.”

Yoo and Addington were evasive, repeatedly stonewalling members of the subcommittee. The Justice Department evidently placed limitations on what Yoo was allowed to discuss, but he invoked privileges where it did not appear privilege was authorized. This led to Yoo’s refusal to answer several direct questions. Jeanne Mirer stated, “The evasiveness of Yoo and Addington did not earn them credibility with the subcommittee, and frustrated many of the questioners. These tactics prevented the subcommittee from getting answers to the many important questions about the source of legal authority for the positions espoused in the ‘torture memos’ regarding aggressive interrogation techniques.”

The NLG has decried the use of torture techniques as well as efforts by lawyers to try to justify them. The NLG has called for holding accountable those who violated the law. While these hearings have helped to establish the record, there is a need for a full blown investigation which could lead to a call for criminal prosecution. The NLG calls for the appointment of an independent special prosecutor, and the establishment of a congressionally appointed commission to investigate potential wrongdoing, including the commission of war crimes, by high officials and lawyers of the Bush administration.

June 20, 2008

Scalia Cites False Information in Habeas Corpus Dissent

To bolster his argument that the Guantánamo detainees should be denied the right to prove their innocence in federal courts, Justice Antonin Scalia wrote in his dissent in Boumediene v. Bush: “At least 30 of those prisoners hitherto released from Guantánamo have returned to the battlefield.” It turns out that statement is false.

According to a new report by Seton Hall Law Center for Policy and Research, “The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. The ’30’ number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely.”

The largest possible number of detainees who could have “returned to the fight” is 12; however, the Department of Defense has no system for tracking the whereabouts of released detainees. The only one who has undisputedly taken up arms against the United States or its allies, “ISN 220,” was released by political officers of the DoD against the recommendations of military officers.

Scalia bolstered his hysterical claim that the Boumediene decision “will almost certainly cause more Americans to be killed” with stale information that was proven to be false one year ago. Professor Mark Denbeaux, director of the Seton Hall Center, said Scalia “was relying uncritically on information that originated with a party in the case before him.”

The Supreme Court decided in a 5-4 decision that the Guantánamo detainees were entitled to file petitions for writ of habeas corpus to challenge their detention. More than 200 men who have been held for up to six years and have never been charged with a crime, will now have their day in court. Many were snatched from their homes, picked up off the street or in airports, or sold to the U.S. military by warlords for bounty.

Scalia, who sits on the highest court in the land, has acted as a loyal foot soldier for the executive branch of government.

June 16, 2008

Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O’Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are “unelected.” Indeed, she advocated that Bush break the law and disregard the Court’s decision in Boumediene v. Bush:

“Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I’m out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that’s very interesting that the court decided this, but I’m not going to respect the decision of the court because my job is to keep this country safe.”

What did the Court decide that so incensed Ingraham (who has just been rewarded for her “fair and balanced” views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing ‘enemy combatant’ designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court’s finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected “the necessary implication” of Bush’s position that the political branches could “govern without legal restraint” by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a “jurisdictionally quirky outpost.”

Kennedy worried that the political branches could “have the power to switch the Constitution on or off at will” which “would lead to a regime in which they, not this Court, say ‘what the law is.'” “Even when the United States acts outside its borders,” Kennedy wrote, “its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution.'”

Thus, Kennedy observed, “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers.” Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

“The test for determining the scope of [the habeas corpus] provision,” Kennedy wrote, “must not be subject to manipulation by those whose power it is designed to restrain.” It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say “what the law is.”

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals (“CSRTs”) to determine whether a detainee is an “enemy combatant.” These kangaroo courts provide no right to counsel, only a “personal representative,” who owes no duty of confidentiality to his client and often doesn’t even advocate on behalf of the detainee; one even argued the government’s case. The detainee doesn’t have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on “generic” evidence and were set up to rubber-stamp the “enemy combatant” designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges – a colonel and a major in the Air Force – “found the information presented to lack substance” and noted that statements presented as factual “lacked even the most fundamental earmarks of objectively credible evidence.” After they determined there was “no factual basis” to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham’s affidavit about the shortcomings of the CSRT’s in Boumediene’s companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that “even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact.” The Court then had to determine whether the procedure for judicial review of the CSRTs’ “enemy combatant” designations constituted an adequate substitute for habeas corpus review.

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context,” Kennedy wrote, “the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

But in the Detainee Treatment Act (“DTA”), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that “when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.” Since the DTA’s scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as “an unconstitutional suspension of the writ.”

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision “will almost certainly cause more Americans to be killed.” Likewise, the Wall St. Journal editorialized, “We can say with confident horror that more Americans are likely to die as a result.” Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, “Sometimes we just didn’t get the right folks,” but innocent men remain detained there because “[n]obody wants to be the one to sign the release papers . . . there’s no muscle in the system.”

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their “enemy combatant” designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. “The ultimate principle,” he said, “is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.” Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that “arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny.” Justice Souter cut to the chase in his separate opinion, citing “the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years.” None of them has been charged with a crime and none has been brought before a fair and impartial judge.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

“Security subsists, too, in fidelity to freedom’s first principles,” according to Kennedy. “Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers … Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.”

In responding to Laura Ingraham’s false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin’s admonition: “They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices – Ginsburg, Stevens, Souter and Breyer – in the majority, and the four conservative justices – Scalia, Thomas, Roberts and Alito – in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has “teed up the Supreme Court issue nicely for the G.O.P.”

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, “It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that.” By the next day, McCain had changed his tune. “The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country,” he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as “an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.”

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

June 5, 2008

NLG Says Politics Motivated Decision in Cuban Five Case

Two Judges on Three-Judge Panel Uphold Conspiracy to Commit Murder Conviction Despite Government’s Lack of Evidence

New York. The National Lawyers Guild (NLG) believes that politics influenced yesterday’s federal appeals court decision upholding the convictions of five Cuban patriots accused of spying in the United States. The so-called Cuban Five were gathering information on U.S.-based exile groups planning terrorist actions against their island nation.

The court did, however, vacate the sentences of three of the Five, including two serving life terms. A three-judge panel of the 11th U.S. Circuit Court of Appeals returned the three cases to a federal judge in Miami for re-sentencing based on findings that the three men had gathered no classified information.

The full 11th Circuit court in August 2006 upheld the convictions of the Five: Gerardo Hernández , Fernando González , René González , Ramon Labañino, and Antonio Guerrero. It rejected claims that their federal trial should have been moved out of Miami because widespread opposition to the Cuban government among Cuban-Americans would make it impossible to get a fair and impartial jury.

In the appeal ruled on yesterday, the Five challenged rulings on the suppression of evidence from searches conducted under the Foreign Intelligence Surveillance Act, sovereign immunity, discovery procedures, jury selection, prosecutorial and witness misconduct, jury instructions, sufficiency of the evidence to support their convictions, and sentencing.

In this latest decision, the panel voted 2-1 to affirm the life sentence for Gerardo Hernández, who was convicted of conspiracy to commit murder in the deaths of four Miami-based pilots shot down by Cuban jets in 1996. In her 16-page dissent, Judge Phyllis Kravich wrote that the government failed to present evidence sufficient to prove beyond a reasonable doubt that Hernández agreed to participate in a conspiracy to shoot down planes over international airspace, resulting in the deaths of four pilots from an anti-Castro organization, Brothers to the Rescue. The panel also affirmed Rene González’s 15-year sentence for acting as a non-registered foreign agent and conspiracy to act as a non- registered foreign agent.

The panel vacated the life terms of Labañino and Guerrero, agreeing with their contentions that their sentences were improperly configured because no “top secret information was gathered or transmitted.” The judges also vacated Fernando González’s 19-year sentence because he was not a manager or supervisor of the network. The panel remanded these cases to the district court for re-sentencing.

After a trial that lasted six months, the Five were convicted in 2001 of acting as unregistered Cuban agents in the United States and of conspiracy to commit espionage for attempting to penetrate U.S. military bases. A three-judge panel of the 11th Circuit overturned the convictions in 2005, saying there should have been a change of venue. But the full court reversed that decision, 10-2.

“Conspiracy has always been the charge used by the prosecution in political cases,” said NLG attorney Leonard Weinglass, who represents Guerrero. “In the case of the Five, the Miami jury was asked to find that there was an agreement to commit espionage. The government never had to prove that espionage actually happened. It could not have proven that espionage occurred. None of the Five sought or possessed any top secret information or US national defense secrets,” Weinglass added. “The sentence for the conspiracy charge is the same as if espionage were actually committed and proven. That is how three got life sentences. The major charges in this case were all conspiracy related, the most serious being conspiracy to commit murder levied against Gerardo Hernández.”

“Anti-Cuba sentiment has tainted all possibility of a fair trial for the Five since their original arrest and confinement, which the UN Rapporteur on Torture described as violating the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment,” said NLG Executive Director Heidi Boghosian. “During the original trial, the Bush administration paid journalists to write unfavorable stories about Cuba. Anti-Cuban extremists tried to intimidate the jurors, and even prospective jurors admitted that they would be afraid to return not-guilty verdicts against the Five.”

“For nearly 50 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba,” said NLG President Marjorie Cohn. “In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba.”

NLG Urges United States to Sign and Ratify Treaty Banning Use of Cluster Bombs

NLG Also Renews Its Call for the U.S. to Ratify Land Mine Treaty

New York. The National Lawyers Guild is disturbed to see that, once again, the rhetoric of the United States government about building peace and security is directly contradicted by its actions. While more than 100 countries met in Dublin and signed a treaty banning the use of cluster bombs, the United States, along with Russia, China and Israel, refused to participate in the conference that led to the treaty and have refused to sign it. The Guild calls on the United States to immediately sign and ratify the treaty, and also renews its call for the United States to ratify the land mine treaty as well.

Cluster bombs are particularly insidious munitions. First, they litter an area with hundreds of submunitions, known as “bomblets,” which both kill and maim. Many of the bomblets do not explode on impact and, like land mines, lurk undetected until unfortunate civilians, often children, stumble on them or pick them up. While the State Department’s Stephen D. Mull had said that removing unexploded ordnance from a battlefield is “an absolute moral obligation,” he did not explain how that was to be accomplished. He also maintained that, for some unexplained reason, the United States needed to utilize cluster bombs as part of its national defense, as inconceivable as it may be to imagine the use of such bombs on U.S. soil. If countries that do not have enormous stockpiles of nuclear weapons, massive land, sea and air power, laser-guided smart bombs and missiles, drone planes and countless other weapons of death and destruction can agree to give up their cluster bombs, there is no reason the United States cannot also agree to cease using them.

In the interest of world peace, and as a means of gaining back a measure of its lost credibility in the international community, the National Lawyers Guild calls on the United States to sign and ratify the treaty banning the use of cluster bombs, and renews its call for the United States to ratify the land mine treaty.

May 24, 2008

Hillary Invokes Assassination

For weeks, pundits have speculated about why Hillary Clinton insists on remaining in the primary race when Barack Obama has all but clinched the Democratic presidential nomination. On Friday, Clinton answered that question. It appears she’s waiting in the wings for something dreadful to befall Obama.

When asked by the editorial board of South Dakota’s Sioux Falls Argus-Ledger why she is still running, Clinton replied, “My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don’t understand it.”

It’s astounding that a presidential candidate could verbalize such a thing when the collective American psyche still aches from the assassinations of John F. Kennedy, Malcolm X, Martin Luther King Jr., and Robert F. Kennedy. Many of us remember where we were when these heroes were shot. The pain we felt is palpable. We still suffer from their absence.

Clinton, evidently surprised at the ferocity of the reaction to her statement, made a half-baked non-apology a few hours later. She expressed regret that anything she said could have offended the Kennedy family. But she uttered not a word of repentance for her suggestion that Barack Obama’s death could inure to her benefit.

The response to Clinton’s invocation of the “A” word was swift and strong. The New York Times called it an “inexcusable outburst.” Keith Olbermann characterized it as “crass and low and unfeeling and brutal.” Noting that “the politics of this nation is steeped in blood,” he admonished Clinton: “You cannot and must not invoke that imagery, anywhere, at any time.”

Clinton’s remarks offer a look into her character. In Olbermann’s words, they “open a door wide into the soul of somebody who seeks the highest office in this country and through that door shows something not merely troubling but frightening.”

Before Friday, a groundswell of support for an Obama-Clinton ticket appeared to be building. But as New York state Sen. Bill Perkins, an Obama supporter, said when he heard Clinton’s comments, “My jaw just dropped — I think she just basically shattered her hopes of being named as vice president. To use the example of an assassination,” Perkins added, “I think, leads one to believe that she may be talking about something unfortunate happening to Barack Obama. Couple that with the other remarks she made recently about winning the white vote and her husband’s statements and I’d say something is seriously amiss.”

How, after Clinton’s ominous remarks, could Obama ever turn his back on her if she became his vice-president?

Anyone who “might be sticking around on the off-chance the other guy might get shot has no business being the president of the United States,” Olbermann declared. As Newsweek’s Howard Fineman noted, Clinton’s is “a campaign that probably needs to be put out of its misery real soon.”

Representative James E. Clyburn of South Carolina, an uncommitted superdelegate, commented that Clinton’s remarks were “beyond the pale.” Indeed, the remaining uncommitted superdelegates should stop the bleeding now and allow us to move on with the election.