Another War of Jenkins' Ear

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Posts Tagged ‘Supreme Court

Guantanamo and the Executive Branch

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Propublica:

When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

This is an excellent report by Pro Publica (not a surprise, they’re the best around at that). But beyond what Pro Publica reports, we as a society can often be in a rush to make everything a political decision, but sometimes it’s just as simple as a bureaucratic error. While the detention involved presidential decisions, the redaction decisions are of a much lower pay grade. One of them got screwed up, with no easy way to make it right. Regardless of whether detention at Guantanamo or elsewhere was done correctly, poorly, or somewhere in the middle, this situation could still exist.

It’s also hard to jump to conclusions about the impact on the judge when the judge will not say what it was:

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.

There are two competing interests in government redacting: protecting national security and protecting the prosecution. Not surprisingly, both of these institutional interests are alleged:

Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”

The question is not if both of these interests exist; even if one or both did not, there would at least be a perception of both. The question is how to address them. And the only way to do that is from outside the executive: Congress, the Supreme Court, or ideally both somehow would act in a way to ensure fair procedural safeguards.

The problem is that both institutions have essentially abdicated any responsibilities related to war whatsoever. This has long been the case with the Supreme Court. The laissez-faire attitude peaked in the Korematsu decision that refused to condemn the internment of Japanese-Americans during World War Two. The series of detainment decisions culminating in Boumediene were meaningful but the impacts, as we have seen, have been basically to give far outside limits. And the Congressional action, from the AUMF on, has been absolutely shameful.

My main problem is that for some reason people expect the executive to change this unilaterally. That will never happen. There are four reasons why this won’t happen:

1) No executive is going to be able to completely rid bureaucrats of a desire to protect prosecutors.

2) No president will unilaterally get prosecutors to be more forthcoming on issues of national security, especially when pushing for trust of the national security apparatus is the first thing any new President must do (particularly those with a history of perceived antipathy).

3) Add to this the overwhelming pressure to protect America. No President wants to release the guy who ends up creating the next 9/11 or Cole bombing. Voters would punish that proportionally far more than they would reward a President for releasing someone who the president thinks may just be a mild risk.

4) Presidential leadership on Guantanamo is not the most important variable in change. I thought Jamelle Bouie’s post on this was on the mark:

Yes, Guantanamo closure was a core issue for President Obama, and yes, it was a core issue for his liberal supporters, but it wasn’t a core issue for the Democratic Party, and it needed to be for any chance at success. Given unanimous and vocal Republican opposition to the administration agenda writ large, Guantanamo closure was virtually certain to become a bitter partisan fight. For success, Obama needed a certain level of pro-closure consensus among congressional Democrats. Absent that consensus (and combined with public pressure to the contrary), it was no real surprise to see the White House avoid confrontation: Given limited resources, limited power, and the choice between a hard fight with a small chance of success, and a hard fight with a moderate one, the administration felt best served by investing its resources in the hard fight with moderate chance of success, i.e., health-care reform.

In other words, like Bill Clinton and gays in the military, Guantanamo closure was a high-profile fight that lacked strong support within and outside the party. Obama could have invested further resources in closing the base, but he would have lost ground with health-care reform, stimulus, and other competing priorities. This isn’t to minimize Obama’s failures or the extent to which he has simply embraced large elements of Bush national-security policy, but you can think of an issue like Guantanamo as the price of presidential ambition. When there are many things on the executive plate, some of them have to go by the wayside. This, unfortunately, was one of them.

You can add to this that every electable politician on Guantanamo had the same position as Obama or was much further right (see Romney offering to double Guantanamo). This is why it frustrates me that so many on the left expend all pressure on the matter at Obama, and not on Congress, who is actually 1) pliable and 2) can be changed without massive collateral damage elsewhere.

Obama signed an executive order to close Guantanamo. What happened? The Senate foreclosed any such action by a 90-6 vote. That’s right. Ninety to six.

Until and unless Congress is pushed to engage more on detainee action, the executive will be on an island alone; the Supreme Court will determine the boundaries of that island but little more.

**Edited this post to make clear that the Pro Publica report was -not- politicized.

Written by John Whitehouse

April 25, 2011 at 9:22 pm

The Supreme Court Cannot Solve Everything

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President Obama made a signing statement refusing to let Congress dictate who he can and cannot hire. In the words of Kevin Drum, Obama “thinks that Congress has no right to tell him who he can and can’t consult in the Office of the President. So he signed the bill but added a signing statement telling Congress to piss off.”

Drum adds that:

Actually, I’m curious about something here. When Congress and the President disagree about something like this, it’s up to the Supreme Court to adjudicate. But how does that usually work? Does the president abide by the law but sue in federal court to have it overturned? Or does he break the law and wait for someone to sue him? What’s the usual historical precedent?

Well, there’s not a lot of historical precedent, because first, the Supreme Court from the very beginning of the country refused to offer advisory opinions. Here’s what the Jay Court said:

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

This is especially relevant to this particular issue: the Courts only get involved when there is an actual issue, but moreover, the Constitution really does give the President all the executive power, including consulting who he may.

But this also means the Courts can’t just solve this generally: there needs to be an actual court case of someone suing for something. It’s unclear who would or could do that here.

The one example of when the Court did step in is in Marbury v. Madison, which is probably the most important case in the history of our country, so I can’t sum it all up succinctly. But here goes: Marbury did involve is a specific person – the eponymous Marbury, who was given a judicial appointment by Adams; that appointment was rescinded by Jefferson before the actual appointment was delivered. And even in that case, John Marshall found that while Marbury had a right to the appointment, the judiciary had no right to enforce it, because the mandamus statute was unconstitutional. But a part of that decision was also the birth of the political doctrine which is very relevant here:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

Here, the czars have not had any other duties imposed on them by Congress. Not one. They solely provide advice and guidance to the President and his/her staff on areas of expertise. The Republican fetish of eliminating the czars is directly and clearly against the most fundamental court decision in the history of our country. This is exactly the sort of gross Congressional overstepping that calls for a signing statement. Neither party in Congress has the Constitutional ability to limit the advice the President receives.

The entirety of history of Congressional right to confirm people refers to officers who have official duty. What we have here is a hypothetical that not even Marshall thought Congress would resort to: limiting who the President can merely look to for policy advice without any additional responsibility. It’s not the Constitution’s fault that the czars annoy Republicans.

What’s important to realize (and I think Drum does) about the czars is that they do not give the President any additional power. Van Jones or whoever is just an outside advisor, that the President feels better to keep in house rather than call regularly. But the Constitution gives the executive carte blanche authority on whom he can consult with.

But it’s important to realize is that under no realistic scenario is this going to go to the courts, short of someone actually depriving the czars from receiving a paycheck which they then sue for. This is not a problem for the court system. This is for Congress and the executive to work out alone.

UPDATE: Via a Balloon Juice commenter, Barack Obama also said, “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” It’s patently obvious to me this falls in the former category of valid signing statements. This signing statement does not expand executive power, it just protects the ability to hire advice as he sees fit. That’s been a protected Presidential ability as long as the office has existed.

Written by John Whitehouse

April 16, 2011 at 12:23 pm

Alien and Sedition Acts in Ecuador

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Human Rights Watch:

President Rafael Correa’s efforts to prosecute his critics for defamation under criminal law is a serious blow to free expression in Ecuador, Human Rights Watch said today. Ecuador should repeal the defamation provisions in its criminal code, Human Rights Watch said. 

On March 21, 2011, President Correa filed a criminal libel suit against a journalist, Emilio Palacio, and three members of the board of directors of the Guayaquil-based newspaper El Universo – Carlos Eduardo Pérez Barriga, César Enrique Pérez Barriga, and Carlos Nicolás Pérez Barriga. He asked the court to sentence each of the men to three years in prison and to fine them US$50 million. He also sought $30 million from the company that owns the paper.

[. . .]

The Inter-American Court of Human Rights has held that public officials “who have voluntarily exposed themselves to greater public scrutiny are subject to greater risks of being criticized, since their activities are … part of the public debate.”  The honor of public officials or public people must be legally protected, the court says, but that must be accomplished “in accordance with principles of democratic pluralism.” The use of criminal proceedings for defamation must therefore be limited to cases of “extreme gravity” as a “truly exceptional measure” where its “absolute necessity” has been demonstrated, and that in any such case the burden of proof must rest with the accuser.

In 2007, the Mexican Congress decriminalized defamation at the federal level. In June 2009, Uruguay eliminated criminal sanctions against those who publish opinions or information about public officials or issues of public interest. In November 2009, Argentina eliminated criminal penalties in cases involving information of public interest. In December 2009, the Costa Rican Supreme Court eliminated prison terms for criminal defamation.

America has had it’s own issues with prosecuting dissent. The first was the Alien and Sedition acts passed during the Adams administration. Later, during the First World War, there were numerous cases that went to the Supreme Court regarding the First Amendment.

The Alien and Sedition acts died quicker probably largely because they were substantially partisan – it was just easier for Jeffersonian Republicans to oppose the law.

But the Alien and Sedition acts were written and enforced by the same generation that is basically the Greatest Generation’s Greatest Generation: the founding fathers. We tend to limit the flaws of the founding fathers to treatment of minorities: slaves, African Americans, women, Native Americans, etc. And that’s a pretty glaring flaw. But the Alien and Sedition Acts were a massive, massive problem that only was forgotten because Jefferson took over and let them lapse. So as bad as they were, at least they were partisan – that made it easier for the laws to go away (so quickly that they were never challenged in court).

The Founding Fathers Have a Hissy Fit

As bad as the Alien and Sedition acts were, far more insidious was  applying publishing restrictions against minority ideas such as any anti-war ideas, socialism, and communism (see cases like Schenk,FrohwerkMasses PublishingDebs (yes, that Debs), AbramsGitlowWhitneyDennis and ultimately Brandenberg. Communists were never a political force in this country, but you wouldn’t have known it by the number of laws made to silence them. The laws passed against anti-war activists would shock the conscience of even the most fervently pro-war neocon. We as a country have generally moved away from restrictions against such speech. At most, nowadays, there are simply social norms regarding such speech, not laws. And while some of those norms are deeply disturbing (see treatment of protesters before the Iraq war) they are at least constitutional.

But the political speech laws are where they should be. Nowadays, we can even allow speech from the likes of the Westboro idiots and deal with it. People talk about whether American exceptionalism does or does not exist, but I can say that American laws regarding political speech have generally evolved well. It’s something we can all be proud of. Now, if we can just fix other areas of free speech….

And to Ecuador: good luck.

(Image from here)

South Africa Values Independent Investigations

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Can anyone imagine this sort of political courage in the United States?

South Africa’s highest court has struck down the 2008 law that disbanded the independent crime investigating group known as the Scorpions.

The legislation to disband the Scorpions followed an investigation into now-president Jacob Zuma’s alleged involvement in a major arms deal. The Scorpions were replaced by a police-run unit known as the Hawks.

The Constitutional Court ruled on an amendment to the policing act that brought about the demise of the Scorpions, the Directorate of Special Operations, and the birth of the Hawks, the Directorate for Priority Crime Investigation.  It says the amendment is unconstitutional because it does not ensure the independence of the Hawks.

The Scorpions undertook many investigations of alleged government corruption and other alleged crimes by senior government officials. The unit’s conviction rate was well over 90 percent.

One of its most prominent cases was its investigation of Mr. Zuma on corruption and other charges.  But those charges were dropped shortly before he was elected president.  There were accusations by both sides that the actions were politically motivated.

Being part of the police department, the Hawks do not have the same independence as their predecessors.  The Constitutional Court has given the government 18 months to ensure that they are independent of undue government influence or control.

The majority opinion read in part that the Hawks are “insufficiently insulated from political influence in its structure and functioning…because…activities must be coordinated by the Cabinet.

It sounds like this Scorpions unit is essentially what would happen if ProPublica was a unit of the DOJ.

We live in an era where political parties cannot investigate each other (unless someone got some in the Oval Office) for fear of ‘looking backwards.’ Meanwhile, South Africa courts go against the legislature to uphold an independent group that investigated the President? Wow.

I quoted this at some length because I am just amazed that a Supreme Court can stand up to a President on rule of law issues when it’s that personal. (Granted, the DOJ is already insulated from a lot of political pressure) The closest analogue in the United States lately might be the line of cases striking down certain detention practices of the Bush Administration. But that was not as personal or as thorough as the ruling here (as evidenced by Guantanamo still being open).

Not to mention that South Africans have great taste in naming their law enforcement operations. Suck on that, American Joint Task Forces.

Written by John Whitehouse

March 17, 2011 at 11:55 am