March 31, 2011
Wednesday, November 3, 2010
U.S. President Barack Obama’s statement yesterday that the majority Democrats had taken a “shellacking” in Tuesday’s election because of the tepid economic recovery was shocking. Sure, if in the two years since Barack Obama took office with Democratic majorities in both houses of Congress, the U.S. economy had completely turned around and U.S. industries were crying for more workers, the opposition Republicans probably would not have won 60 seats to control the House of Representatives. Economic success would most likely have enabled the Democrats to retain a portion of the popularity they achieved in 2008, when Obama led his party back into the White House on a wave of public disgust over the performance of the Bush administration. But for all his vaunted political skills, Obama has repeatedly misread the American public since taking office. U.S. voters did not turn the Republicans out of the White House merely because the economy had been disastrously mishandled by his predecessor, they elected the first black president to repudiate the seemingly gleeful lawlessness of the Bush administration. The George W. Bush presidency broke a long list of the country’s most-cherished legal principles and traditions — eviscerating the constitutional separation of powers, overruling the U.S. Bill of Rights, disrespecting the sovereignty of other nations, ignoring the Geneva Conventions. For all the good Obama has been able to accomplish in reforming the way the country regulates itself, he has decidedly failed to address the biggest problem — the one that has left the United States unsure of how to function. Bush and other officials in his administration, including former Vice President Dick Cheney, must be called to answer for their abuses of power. An investigation doesn’t necessarily mean anybody is guilty of anything, although it seems so, it just means the United States is not afraid to examine its conduct and make corrections when warranted. The Congress should set up a commission, with the power to compel witnesses to testify, to figure out what went wrong during the Bush administration and how to prevent it from happening again. That is the only way for the United States to regain its footing as an international leader and for the Obama to redeem his presidency.
March 16, 2011
Wednesday, October 20, 2010
Word from Washington that the Justice Department decided Monday not to charge a Blackwater Worldwide employee with murder for a killing in Baghdad that he admitted appears to spell the end of U.S. efforts to address the some of the excesses that have come, sadly, to characterize the 2003 invasion of Iraq. The decision followed a line of failures in high-profile cases brought against employees of companies that were armed contractors for the U.S. State Department in Iraq, a still-questionable arrangement with dire constitutional implications that still have not been adequately examined. The most notable prosecution that failed, of course, resulted in the acquittal of five former Blackwater guards who opened fire on civilians in Baghdad’s Nisour Square in 2007, killing 17, according to the New York Times. The Justice Department decision came in a case involving Andrew Moonen of Seattle, who killed a guard protecting Iraq’s vice president on Christmas Eve in 2006. The case was complicated by a blanket grant of immunity to State Department contractors, like Blackwater, but not to Defense Department contractors, immunity granted to Andrew Moonen, the Blackwater employee, by a U.S. Embassy official and by Moonen’s claim of self-defense. The Justice Department has investigated the case for four years, and already paid damages to Moonen’s family. But the murky legal environment that finally prompted Justice to drop the case is no accident. The government of George W. Bush went to war on dubious evidence and corrupted longstanding legal and constitutional principles along the way. The only real surprises here are that is has taken so long for these cases to be dismissed and the subsequent Obama administration’s refusal to investigate misconduct by his predecessor. It will take decades to repair the damage to the legal system of the United States, and may take even longer for the country to regain its moral footing unless such an investigation is undertaken. The issue is not whether anyone will have to prison, although it may come to that. The future of the United States is on the line here — the sooner the reckoning begins, the better for everyone.
March 10, 2011
Saturday, September 25, 2010
Just how important is it that the United States, with the world’s most powerful military and the world’s most enduring democracy, engage in conduct overseas that would be patently illegal within its own borders? That question arose again yesterday, as it has repeatedly in the rather disturbingly slow dismantling of widely discredited George W. Bush-era policies, when the Obama administration invoked the state secrets doctrine in an effort to convince a federal judge in Washington to dismiss a lawsuit accusing the military of trying to kill a U.S. citizen in Yemen. According to the New York Times, the New Mexico-born citizen, Anwar Al-Awlaki, is living in Yemen and is associated with al-Qaida, the radical Islamic terrorist group blamed for the Sept. 11, 2001, terrorist attacks on New York and Washington, D.C. that killed thousands. His father, Nasser al-Awlaki, filed the lawsuit seeking an injunction to block the U.S. government from killing the son, the Times said. U.S. government lawyers completed a legal brief Friday contending the lawsuit should be dismissed because litigating the could result in the disclosure of confidential information — the so-called state secrets — and other grounds. The doctrine was invoked successfully numerous times during the last administration to short-circuit claims against the government for allegedly illegal activities in the war on terror. No one seriously questions whether the government has the right to keep secrets when disclosures would put innocent lives at risk. But that does not give the government the right to maintain secrecy when it wants merely to escape consequences for illegal activity. What we saw during the last administration, when the federal government eviscerated long-established constitutional principles to advance a dubious political agenda, should give everyone pause. There has to be a serious accounting. The Obama administration’s most serious mistake so far was its refusal to review the previous government and to bring alleged lawbreakers to trial. Everything that happens now, including the Al-Awlaki case, is built upon that miscalculation. This time, the Times said, Obama-appointed Attorney General Eric Holder personally approved invoking the state-secrets defense. “It strains credulity to argue that our laws require the government to disclose to an active, operational terrorist any information about how, when and where we fight terrorism,” said Matthew Miller, a Justice Department spokesman. That’s logical, but only in the abstract, and it’s a bad mistake to invoke it merely to justify other bad mistakes. If this is going to continue to be a government of laws, those laws are going to have to be enforced — even if it means some well-known government officials will have to stand trial.
November 22, 2010
Isn’t it time to give up on banning gay marriage?
Does anyone really think life would not be worth living if gay people were allowed to marry? That seems to be just what anti-gay marriage partisans have been saying since a San Francisco federal court struck down California’s Proposition 8, a ban on such unions approved by voters in 2008. “This is going to set off a groundswell of opposition,” prominent Prop. 8 backer Jim Garlow, pastor of Skyline Church in La Mesa, Calif., told the New York Times. “It’s going to rally people that might have been silent.” The ruling applies only to the parts of Northern California included in Walker’s district, and not to the rest of California nor to any other U.S. states that already have banned gay marriage. So, what’s the big deal? It’s not like the court is requiring people in Northern California to enter into gay unions, is it? No, the court simply said the government cannot make laws that extend benefits to some people while excluding them from others on the basis of who they love. “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” highly respected Judge Vaughan Walker of the Northern District of California said in his ruling. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” This is the kind of ruling we expect from our courts when the government does something outrageous, particularly when that something reflects the passion of the moment. We have rules that protect minorities precisely for this reason — the government is barred from enacting discriminatory provisions. The disconnect here is that the opponents of gay marriage try to use the government to advance a religious-oriented agenda, not the other way around. Why did they even go to court in the first place? A rational judiciary could not decide this case any other way, and the fact that some courts have allowed states to ban gay marriage is both preposterous and insulting.
October 3, 2010
Anyone — including, unfortunately, U.S. President Barack Obama — who thinks the long nightmare that was the George W. Bush administration is behind us should consider what the former official who approved brutal interrogations of terror suspects said the other day. According to transcripts released Thursday, Judge Jay Bybee, who headed the Office of Legal Counsel from 2001 to 2003 and recommended the use of “enhanced” interrogation techniques, told Congressional investigators that he stood by his advice. “We took a muscular view of presidential authority,” Bybee said, according to the New York Times. “We were offering a bottom line to a client who wanted to know what he could do and what he couldn’t do. I wasn’t running a debating society, and I wasn’t running a law school.” Bybee’s deputy, John Woo, now a law professor at the University of California in Berkeley, wrote the infamous memos approving the use of waterboarding and other invasive techniques and Bybee approved them. Bybee made his comments in closed-door testimony before the House Judiciary Committee, which is still investigating the conduct of the Central Intelligence Agency during the Bush administration. Bybee was appointed to the U.S. 9th Circuit Court of Appeals in San Francisco after he left the White House but before the contents of the torture memos were revealed publicly. Many of the memos were withdrawn by the government after the contents were leaked to the media. Bybee and Yoo were accused of misconduct after a Justice Department investigation, but its conclusions also were withdrawn. Of course, the point is not only that Bybee was in the middle of some of the worst abuses of power in the nation’s history — it’s also that he still thinks he was right. Bush and Vice President Dick Cheney also believe they were right to erode respect for the rule of law that has made the United States a great nation, as if ruining the country’s great traditions and sacrificing its founding principles could ever be the way to keep it safe.
October 3, 2010
News that hundreds of U.S. National Guard soldiers and border protection agents have been sent to the Mexico border to prevent illegal immigrants and illicit cargo from crossing into the United States is both welcome and unwelcome at the same time. While a stronger U.S. response to rising reports of drug-related violence in border regions is long overdue, excessive reliance on the military to resolve the nation’s problems is extraordinarily ill-advised. Nobody can seriously oppose using soldiers to stop violence from heavily armed drug gangs that is spilling over into U.S. border cities, as the Reuters international news service is reporting, but using soldiers to do what diplomats should have been doing in talks with the Mexican government should be prevented. The United States has plenty of leverage with Mexico City to pressure that government to better its border enforcement and to direct more of its oil wealth to better the lives of its citizens so they won’t be forced by economics to flee. That people are forced to leave their country and live second-class lives in another place to provide food for their families should be an issue of paramount importance to countries around the world. But excessive reliance on the military has taken an unacceptable toll on the United States both economically and philosophically. This country has compromised some of its most basic principles in pursuit of military dominance in other parts of the world. The historic changes in Washington have so far been unable to reverse that trend, and we will all be a lot worse for it.
August 10, 2010
News that the American Civil Liberties Union had filed suit to challenge the federal government’s “no-fly list” should be regarded as both good news and bad news for U.S. residents concerned about Washington’s growing authority over their lives. That it has taken so many years to assemble a credible constitutional challenge to what assuredly was an immense power grab by federal authorities speaks quite loudly about the passivity of most Americans and their lack of involvement in governing their country. To be sure, the circumstances that led the feds to closely monitor airplane travel after the Sept. 11 attacks were unprecedented and outrageous. But the emergency that arguably justified the imposition of such a draconian regulatory regime — barring U.S. citizens from traveling on airplanes based on possibly incorrect but still secret information — has surely passed. And that it took a citizens group to mount that challenge, and not any of the array of federal agencies whose taxpayer-funded mission is to defend the U.S. Constitution, is nothing short of disgraceful. Even the lawsuit filed Wednesday tacitly accepts the legality of the restrictions, since it argues on behalf of 10 residents that the rules are unconstitutional because they do not permit people on the list to challenge their inclusion, according to the Reuters international news service. An ACLU lawyer told Reuters that the lawsuit was the first filed on behalf of legal U.S. residents challenging the no-fly list system. A lawsuit by a non-citizen seeking to get removed from the list is still pending, Reuters said. “The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process,” the suit filed Wednesday says. The lawsuit was filed in U.S. District Court in Portland, Ore., and names Attorney General Eric Holder, FBI Director Robert Mueller and Timothy Healy, director of the FBI’s Terrorist Screening Center, Reuters said.
June 2, 2010
U.S. citizens who thought last year’s change at the top meant a return to the days before al-Qaida and the Sept. 11 terrorist attacks on New York and Washington got another reality check Friday when a federal appeals court in Washington ruled that terror suspects captured overseas may not challenge their detentions in U.S. courts. The unanimous ruling by a three-judge panel means that three detainees held for years without trial at Bagram Air Base in Afghanistan did not have the same right of appeal that suspects being held by the U.S. military at Guantanamo Bay, Cuba, won in a landmark U.S. Supreme Court ruling in 2008, according to the New York Times. The ruling reversed a trial judge’s decision that the Bagram detainees — in this case, two men from Yemen and one from Tunisia who claimed they were captured outside Afghanistan and brought to the U.S. base — had the same rights as prisoners held at Guantanamo Bay. Critics and supporters of the Bush administration’s aggressive post-9/11 detention policies, which Obama criticized while campaigning but has defended in court, reacted to the ruling with expected vehemence. A lawyer for the detainees, Tina Foster of the New York-based International Justice Network, said the appeals court ruling would allow U.S. presidents to “kidnap people from other parts of the world and lock them away for the rest of their lives” without ever having to prove that they were guilty of anything, the Times said. “The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.” But U.S. Senator Lindsey Graham (R-South Carolina), a backer of the Bush-era detentions, told the Times that the ruling was a “big win” for the U.S. war effort in Afghanistan. “Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.” A spokesman for the U.S. Justice Department, Dean Boyd, declined to comment on the decision, the Times said. The three prisoners say they are not terrorists and are being held by mistake.
May 31, 2010
News from Washington that the Obama administration is proposing exempting terrorism suspects from constitutional protections guaranteed to U.S. citizens raises troubling questions about the president’s commitment to undoing the worst abuses of the last administration. There is nothing in the Bill of Rights to suggest that it is negotiable, or that it only was intended to apply to some of the people some of the time. Yet that is undeniably the basis of Attorney General Eric Holder’s proposal that terrorism suspects — in this case, the Pakistani immigrant who stands accused of trying to set off a bomb in New York’s Times Square on May 1 — no longer be allowed the protection of the so-called Miranda rule, according to the New York Times. The Miranda rule, which bars authorities from questioning suspects until they are advised of their right against self-incrimination — comes from a landmark 1966 U.S. Supreme Court decision interpreting the Fifth Amendment to the U.S. Constitution. The Fifth Amendment prohibits the government from forcing citizens to testify against themselves, and the Supreme Court held in Miranda that police must advise suspects of this right before questioning begins to give full effect to its protection. But the Fifth Amendment is not the government’s protection to give: it was made part of the basic law of the United States to prevent the government from accumulating too much power. As we well recall, Obama was elected in 2008 because the Bush administration developed the nasty habit of selectively enforcing rights that the United States previously knew to apply to everybody. Yet there was Holder on the NBC-TV show Meet the Press on Sunday, touting “big news” and recommending new limits on people’s constitutional rights. “We’re now dealing with international terrorists,” Holder said, “and I think that we have to think about perhaps modifying the rules that interrogators have and somehow coming up with something that is flexible and is more consistent with the threat that we now face.” Holder also indicated for the first time that the United States now believes that bombing suspect Faisal Shahzad, who was arrested as he boarded a plane to leave the United States, had been trained by the Pakistani Taliban. Anthony Romero of the American Civil Liberties Union told the Times that Congress did not have the authority to limit the Miranda ruling since it merely interprets the U.S. Constitution. “What’s troubling is that this is coming from the Obama administration,” Romero said. “The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing, and now they are trying to negotiate away fundamental Fifth Amendment rights that have been the cornerstone of our democracy.”
ACLU, Barack Obama, Bill of Rights, Fifth Amendment