For an Administration that has spilled gallons of ink in efforts to justify its extreme pro-Executive views, the Bush White House sure has fared poorly in court.
In the last five years, the Supreme Court alone has rejected as contrary to law the Executive's position on the scope of jurisdiction of the federal courts (it does, in fact, reach to Guantanamo Bay); the rights possessed by citizen and non-citizen detainees (they are both, in fact, entitled to habeas corpus); and the President's authority to unilaterally try and punish so-called "enemy combatants" (military commissions must, in fact, be sanctioned by an act of Congress). And if the Executive had not so aggressively used the state secrets privilege to keep courts from ruling on its warrantless surveillance program, "enhanced interrogation" tactics, and extraordinary rendition, who knows how many more defeats it would have suffered at the hands of Lady Justice.
The Administration must heed the lesson that courts have been trying to impart: The time has come for cooler heads to prevail, for conciliation to take precedence over litigation, and for the Executive to work with the Congress to remedy the harms done—to our country and to our constitutional structure. Thursday's decision from a federal court in the District of Columbia may provide just such an opportunity.
"The very core of liberty secured by our Anglo-Saxon system
of separated powers has been freedom from indefinite imprisonment at the will
of the Executive," or so they (Justice Scalia) say.
On Tuesday, the Fourth District Court of Appeals issued two
rulings on the case of Al-Marri
v Pucciarelli. One of these stated
that an enemy combatant held in U.S.
soil may petition a civilian court to be given access to evidence against him
and may present counter-evidence as well.
It has been hailed by the lead counsel on the case, Jonathan Hafetz, as
a rebuke of "the Administration's view of untrammeled executive power,
unchecked by any Court."
But, the ruling was very vague as to how this court
proceeding would be carried out and to what level of access to evidence a
detainee would be granted.
The small gains issued in this ruling were further tempered by
a second ruling stating that the Executive has the power to indefinitely detain
anyone deemed as a wartime combatant, even American citizens, without trial.
The close and highly contested rulings, both decided in
split courts, were surprising considering the typically conservative nature the
Fourth District Court.
Hopefully, the Supreme Court (Mr. Hafetz has confirmed that they will be seeking Supreme Court review of this case) will take heed of Justice Scalia's sentiments concerning
Executive Detention when they consider Mr. al-Marri's case.
This is getting to be a maddeningly familiar story:
Plaintiffs file a lawsuit; the federal government intervenes, asserting the
state secrets privilege; a judge promptly rolls over, granting a motion to
dismiss without looking at the evidence. This case of the five "extraordinary
rendition" victims seeking redress against a Boeing subsidiary for flight
services provided to the CIA (Mohamed v.
Jeppesen Dataplan, Inc.) is only the latest. Before the defendant filed an answer, before discovery began or
anyone presented evidence, a federal district judge ruled that "proceeding with
this case would jeopardize national security and foreign relations." Even
though the CIA's rendition program was hardly a black box, the judge thought "the
issues involved are non-justiciable because the very subject matter of the case
is a state secret."
This time, at least, effective objections are being raised
against such an abject abdication of judicial responsibility. The ACLU (lead counsel
for the plaintiffs) has filed a comprehensive appeal to the 9th
Circuit, and the Brennan
Center on July 10 weighed
in with a compelling amicus brief. Much is at stake in their arguments. The executive branch's overbroad claim of
privilege, coupled with the judiciary's reflexive deference, endanger not only
the plaintiffs' rights, but also the critical balance of powers envisioned by
this country's founders.
The National Coalition for a Civil
Right to Counsel has launched its new website, providing advocates and the
public with a much-needed information source and a way to coordinate
efforts to expand recognition of a right to counsel in civil cases. The
Coalition is comprised of over 150 advocates from national and state-based
groups and the website is a great place to find the latest news
developments, relevant case law, research and policy studies, and updates on current "civil Gideon"
efforts in both legislatures and the courts, as well as information on ways to promote a civil right to counsel in your
state.
Both Firedoglake and CBoldt appear to be on top of covering today's vote. CQ Politics has an opinion piece on the bill. The Washington Post also appears to be particularly active, explaining their position after receiving letters from the ACLU as well as Sen. Feingold (D-WI). This after the following full-page ad to the right from Firedoglake graced their pages.
Yesterday, I managed to catch Larry Lessig's latest "Change Congress" Power Point presentation at the Personal Democracy Forum (PDF) here in New York City. Addressing the distorting effects of money on goverment policy (oil industry influence on global warming research, pharma money at the FDA, the sugar lobby on recommended caloric intake), the Stanford professor's performance was easily one of the more rousing presentations that morning and sparked a discernable buzz from the bloggers gathered in Rose Hall, the home of Jazz at Lincoln Center.
It doesn't appear Lessig has posted yesterday's version on YouTube just yet, so I've gone ahead and included one that's pretty close. However, one notable bit of information missing in April's presentation at UCSB posted below are the numbers he cited from MAPlight.org (where he's a board member). Released yesterday, the organization points out that of the House Democrats who changed their votes from March to June clearing the way for a FISA bill with immunity for the phone companies to pass, on average, those politicians received $8,359 in PAC contributions. Specifically:
Comparing Democrats' Votes(March 14th and June 20th votes):
Verizon, AT&T, and Sprint gave PAC contributions averaging:
$8,359 to each Democrat who changed their position to support immunity for Telcos (94 Dems)
$4,987 to each Democrat who remained opposed to immunity for Telcos (116 Dems)
88 percent of the Dems who changed to supporting immunity (83 Dems of the 94) received PAC contributions from Verizon, AT&T, or Sprint during the last three years (Jan. 2005-Mar. 2008).
Now, no one can say those contributions caused recipients to change their votes. But it certainly doesn't project the appearance of an open, honest, and accountable government for the people.
The issues were preliminary and the result of any ruling likely to be. But despite its preliminary nature, a simple Monday morning hearing in the D.C. District Court had the feeling of something much more. Perhaps it was the last-minute change of venue to the District of Columbia's ceremonial courtroom in order to accommodate the larger-than-usual expected crowds. Maybe it was the presence of House Judiciary Committee Chairman Representative John Conyers at the Plaintiff's counsel's table and White House Counsel Fred Fielding on the Defendants' side. Or it could have been the momentous constitutional ramification that flow from any ruling in the case.
Whatever it was, the argument in preliminary motions in the House of Representatives Judiciary Committee's suit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to enforce congressional subpoenas issued in the course of the Committee's investigation into the controversial firings of several U.S. Attorneys in late 2006 was not the court's usual Monday morning fare.
And Judge John D. Bates, the presiding judge, at times seemed to wish he was anywhere other than in a position requiring him to reach a ruling on the issues before him. "I didn't volunteer for this," he reminded the parties at one point.
Today, the Supreme Court's decision in Boumediene v. Bush was a clear rebuke of the Administration's attempt to deny Guantanamo detainees' basic rights. Another decision, in Munaf v. Geren, upheld the Administration's view that the U.S. government cannot interfere with foreign criminal proceedings, even if foreign detention may result in the torture or death of an American citizen.
Together, these cases present some of the questions facing the U.S. as it moves towards a new post-Bush era detention policy. But without the facts, you can't answer the questions, so here you go:
Yesterday, I managed to catch
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