Tags: aclu, al-Qaeda, cia assassination, civil liberties, Criminal Justice, democratic party, due process, eric holder, glenn greenwald, judicial review, Obama, presidential power, roger hollander, rule of law, terrorists, war on terror, warrantless eavesdropping
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Roger’s note: declare “war” on something, war on terror, for example, and you then have the absolute right to kill the “enemy” no questions asked. Prior to the so-called war on terror, there had been acts of terrorism for centuries. They were always dealt with via intelligence gathering and other policing techniques, and alleged terrorists prosecuted through he judicial system (albeit with notable examples of abuse, e.g. Sacco and Vanzetti). This made sense. The ultimate purpose of the war on terror today is to militarize civilian authority. Declare war and you have every right to kill whomever you say is the enemy, be it a citizen or a foreigner. The world is a battlefield. By this logic, the president and the CIA should be able to execute anyone they deem active in the phony “war on drugs.” I am surprised that they haven’t … yet. When they declare war on left-wing political comedians, look out Jon Stewart and Stephen Colbert.
Tuesday, Mar 6, 2012 4:50 AM 20:09:43 EST, www.salon.com
A new speech by Eric Holder cements Obama’s legacy as the president who pioneered secretive, charge-less executions
Barack Obama and Eric Holder (Credit: Reuters)
In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”
So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”
* * * * *
I’ve obviously written about the Obama assassination program many times before but there are several points worth examining in light of Holder’s speech and the reaction to it:
(1) The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.
How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to order accused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground.
That the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time. By stark contrast, right–wing leaders, pundits and bloggers are being commendably consistent: they cheered for Bush’s due-process-free eavesdropping and detention programs and, based on exactly the same reasoning, they now lavishly praise President Obama for extending that mentality to assassinations.
(2) It isn’t merely the Democratic Party generally and its hordes of adherents who have performed a complete reversal on these issues as of January 20, 2009. It’s also true of Barack Obama and Eric Holder themselves.
Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.
Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe. In light of what the Attorney General said and justified yesterday, just marvel at what he said back then, a mere three years ago:
To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.
To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09.
(3) The ACLU said yesterday that Holder’s speech “is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.” The ACLU then added:
Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.
Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.
This is notable for three reasons. First, the ACLU isn’t merely saying this is a bad policy; they are instead pointing out the obvious: that there are “few things as dangerous” as having your own Government assert the right to target citizens for death with no judicial process, yet that’s exactly what the Obama administration is doing with little backlash. Second, the ACLU is challenging progressive defenders of the President to do what none will ever do: explain why they would trust not only Barack Obama, but also Sarah Palin, or Newt Gingrich, or Michele Bachmann, with the power to target U.S. citizens for assassination in secret and with no judicial oversight. Third, that the ACLU is condemning an Obama policy as “as dangerous to American liberty” as a policy can be — also known as: a supreme hallmark of tyranny — demonstrates the huge gulf that has arisen under the Obama presidency between the Democratic Party and the ACLU (a group universally praised by Democrats when a Republican President is in office), though this gulf has been obvious for quite some time.
(4) What’s so striking is how identical Obama officials and their defenders sound when compared to the right-wing legal theorists who justified Bush’s most controversial programs. Even the core justifying slogans are the same: we are at War; the Battlefield is everywhere; Presidents have the right to spy on, detain and kill combatants without court permission; the Executive Branch is the sole organ for war and no courts can interfere in the President’s decisions, etc. I spent years writing about and refuting those legal theories and they are identical to what we hear now. Just consider how similar the two factions sound to one another.
When it came to their War on Terror controversies, Bush officials constantly said back then exactly what Obama officials and defenders say now: we’re only using these powers against Terrorists — The Bad People — not against regular, normal, Good Americans; so if you’re not a Terrorist, you have nothing to worry about. Here’s White House spokesman Trent Duffy in December, 2005, defending Bush’s warrantless eavesdropping program:
This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.
Similarly, when George Bush went before the cameras in December, 2005, to proudly admit and defend his warrantless spying program, he assured the nation that this was all justified because it was only aimed at “the international communications of people with known links to al Qaeda and related terrorist organizations.”
Find a defender of Obama’s assassination program and all you’ll hear is exactly the same thing: this is only being directed at The Terrorists like Awlaki, so we don’t need any court review or due process. Here was Holder yesterday: “it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks,” and assassination orders are only issued once “the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States.”
This is nothing more than an exercise of supremely circular reasoning and question-begging: whether someone is actually a Terrorist can be determined only when the evidence of their guilt is presented and they have an opportunity to respond, just as Holder and Obama said during the Bush years. Government assurances that they’re only targeting Terrorists — whether those assurances issue from Bush or Obama — should reassure nobody: this is always what those who abuse power claim, and it’s precisely why we don’t trust government officials to punish people based on unproven accusations. Here’s what Nixon’s Attorney General, John Mitchell, said in order to assuage growing fears of new government eavesdropping powers, as reported by this July 25, 1969 article from Time Magazine:
Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. “Any citizen of this United States who is not involved in some illegal activity,” he added, “has nothing to fear whatsoever.”
We supposedly learned important lessons from the abuses of power of the Nixon administration, and then of the Bush administration: namely, that we don’t trust government officials to exercise power in the dark, with no judicial oversight, with no obligation to prove their accusations. Yet now we hear exactly this same mentality issuing from Obama, his officials and defenders to justify a far more extreme power than either Nixon or Bush dreamed of asserting: he’s only killing The Bad Citizens, so there’s no reason to object!
Here’s a critique I wrote in January, 2006, of the Bush DOJ’s 42-page whitepaper justifying its warrantless eavesdropping on accused Terrorists. Just read that and you’ll see: the essence of the Bush view of the world was that when it comes to war, it is the President who has sole responsibility and power and courts may not review or interfere with what he decides about who is a Terrorist and what should be done to them. The President is the “sole organ for the Nation in foreign affairs,” declared the Bush DOJ, and ”among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack” and thus, “the Constitution gives him all necessary authority to fulfill that responsibility.” Or, as Holder put it yesterday: “The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history” and therefore “the president is [not] required to get permission from a federal court.” One cannot reject the Bush legal worldview invoked to justify those programs while embracing the Obama worldview expressed here — at least not with an iota of intellectual coherence or dignity.
(5) The dubious or outright deceitful legal claims made by Holder are too numerous to chronicle all of them, but there are a couple worth highlighting. He said, for instance, that “the Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.” That part is true: in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations. Said the Court (emphasis added):
It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . .
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. . . .
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.
How can Eric Holder possibly cite the Supreme Court’s Due Process holdings in the War on Terror context when the Court has held that citizens — merely to be detained, let alone killed — are entitled to exactly that which the Obama administration refuses to provide: “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” and “a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator”? It’s precisely because Obama refuses to fulfill those Court-imposed obligations before ordering citizens executed that this behavior is so objectionable.
If, as Holder argues, the Due Process Clause allows a citizen to be killed based on accusations by the President that are made in total secrecy and which he has no opportunity even to hear, let alone refute, then that core Constitutional safeguard is completely meaningless. And the Supreme Court in the very ruling Holder references leaves no doubt about that, as it required an adversarial hearing before a neutral arbiter even for someone accused of being an “enemy combatant” at the height of the War on Terror.
Then there is Holder’s reliance on the old neocon trick: cite what Lincoln did in the Civil War or what FDR did in World War II — as though those are comparable to the War on Terror — to justify what is being done now. Thus we hear this from Holder: “during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto — the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.” This argument has been hauled out before by administration officials when responding to my critiques of Obama’s assassination program.
Even leaving aside the vast difference between wars posing an existential threat (the Civil War, WW2) and the so-called War on Terror, the difference between the Yamamoto killing and Obama’s citizen assassinations is self-evident. There was no doubt that Adm. Yamamoto was in fact a commander of an enemy army at war with the U.S.: he wore that army’s uniform and identified himself as such. By contrast, there is substantial doubt whether Anwar Awlaki or other accused Al Qaeda members are in fact guilty of plotting Terrorist attacks on the U.S. That’s true for exactly the reason that Holder, in another part of his speech, explained: Al Qaeda members “do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.”
That’s why applying traditional war doctrine to accused Terrorists (who are not found on a battlefield but in their cars, their homes, at work, etc.) is so inappropriate, and why judicial review is so urgent: because the risk of false accusations is so much higher than it is when capturing uniformed soldiers on an actual battlefield. Just recall how dubious so many government accusations of Terrorism turned out to be once federal courts began scrutinizing those accusations for evidentiary support. Indeed, Yemen experts such as Gregory Johnsen have repeatedly pointed out in response to claims that Awlaki plotted Terrorist attacks: “we know very little, precious little when it comes to his operational role” and “we just don’t know this, we suspect it but don’t know it.” Given this shameful record in the War on Terror, what rational person would “trust” the Government to make determinations about who is and is not a Terrorist in the dark, with no limits or checks on what they can do?
(6) Holder’s attempt to justify these assassinations on the ground that “capture is not feasible” achieves nothing. For one, the U.S. never even bothered to indict Awlaki so that he could voluntarily turn himself in or answer the charges (though at one point, long after they first ordered him killed, they “considered” indicting him); instead, they simply killed him without demonstrating there was any evidence to support these accusations. What justifies that? Additionally, the fact that the Government is unable to apprehend and try a criminal does not justify his murder; absent some violent resistance upon capture, the government is not free to simply go around murdering fugitives who have been convicted of nothing. Moreover, that Awlaki could not have been captured in a country where the government is little more than an American client is dubious at best; if the U.S. could locate and enter the home of Osama bin Laden without the cooperation of the Pakistani government, why could it not do the same for Awlaki in Yemen?
But the most important point is that Holder is not confining this assassination power to circumstances where “capture is not feasible.” To the contrary, he specifically said that killing “would be lawful at least in the following circumstances”: meaning that the President’s asserted power is not confined to those conditions. As Charlie Savage wrote: “Significantly, Mr. Holder did not say that such a situation is the only kind in which it would be lawful to kill a citizen. Rather, he said it would be lawful ‘at least’ under those conditions.” We have no idea how far the Obama administration believes its assassination power extends because it refuses to release the legal memorandum justifying it; there is no legal framework governing it; and there is no transparency or accountability for the President’s execution orders.
* * * * *
In sum, Holder’s attempt to make this all seem normal and common should insult anyone with the most basic understanding of American law. As The New York Times put it when first confirming the assassination program in April, 2010: ” The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen. . . . It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.” To date, not a single such citizen has been identified.
As always, the most important point to note for this entire debate is how perverse and warped it is that we’re even having this “debate” at all. It should be self-negating — self-marginalizing — to assert that the President, acting with no checks or transparency, can order American citizens executed far from any battlefield and without any opportunity even to know about, let alone rebut, the accusations. That this policy is being implemented and defended by the very same political party that spent the last decade so vocally and opportunistically objecting to far less extreme powers makes it all the more repellent. That fact also makes it all the more dangerous, because — as one can see — the fact that it is a Democratic President doing it, and Democratic Party officials justifying it, means that it’s much easier to normalize: very few of the Party’s followers, especially in an election year, are willing to make much of a fuss about it at all.
And thus will presidential assassination powers be entrenched as bipartisan consensus for at least a generation. That will undoubtedly be one of the most significant aspects of the Obama legacy. Let no Democrat who is now supportive or even silent be heard to object when the next Republican President exercises this power in ways that they dislike.
DO YOU STILL LOVE OBAMA? THE DEMOCRATIC PARTY? March 4, 2012Posted by rogerhollander in Barack Obama, Criminal Justice.
Tags: Criminal Justice, david swanson, democrats, Obama, presidential power, roger hollander, rule of law, torture, War Crimes
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“Partisan prosecution of crimes and non-crimes by Republicans under President Clinton has been aggravated by Republican defensiveness and Democratic spinelessness under Bush. But it is the Democratic switch to defending all presidential wrongdoing since 2008 that has put the largest nails into the coffin of legitimate rule by law in this country. Bush’s crimes have been legitimized. Obama has claimed the power to torture as he deems necessary, the power to imprison and rendition as he sees fit, the power to murder any human being including U.S. citizens and children as he and he alone declares necessary, and powers of state secrecy that Nixon and Cheney never dreamed of. While Bush lied the Congress into a war that a reasonably intelligent 8 year old could have seen through, Obama has made the launching of wars a matter for the president alone. And that’s just fine with Democrats.”
This is an excerpt from “Un-Cheating Justice: Two Years Left to Prosecute Bush,” by David Swanson. For the entire article: http://www.truth-out.org/un-cheating-justice-two-years-left-prosecute-bush/1330872233
Only Ron Paul Warns Of Emerging Fascist State February 27, 2012Posted by rogerhollander in Civil Liberties, Foreign Policy, Iran, Iraq and Afghanistan, Right Wing, War.
Tags: fascism, foreign policy, indifinite detention, militarism, military detentiion, ndaa, patriot act, presidential power, republicans, right wing, roger hollander, ron paul, sherwood ross, tea party, war on drugs
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Roger’s note: Please don’t get me wrong, I am no fan or supporter of Ron Paul with his Social Darwinian Ayn Rand Libertarian philosophy that makes a fetish of the sacred concept of individual liberty (as if it were possible to separate the individual from the community). Nevertheless, Paul’s positions on war and empire coincide with that of the left in general and the Occupy Movement in specific. It is also easy to see why his persona, which reeks of sincerity and honest indignation, appeals to youthful idealism. His association with the extreme right and some alleged policy statements that sound like white supremacism, are disturbing. But his position of militarism and fascism, as outlined in the article below, begs the question of why he is a part of the Republican Party in the first place; and why, if he sees the connection between authoritarian government and mega corporations, his domestic policy coincides with the interests of those same corporations.
Republican Ron Paul is the only presidential candidate of either party to tell the truth that America is “slipping into a fascist system.”
That is unquestionably the critical issue of the hour for the United States of America and one that Paul’s Republican fellow candidates and their Democratic opponent President Obama choose to ignore.
Hand in hand with this existential crisis is that a nation that goes fascist at home invariably becomes a tyrant abroad. Thus, the Congressman from Galveston is right on the mark when he calls for the predatory U.S. to pull its troops out of the Middle East and Africa and close down its foreign bases. The U.S., indisputably, with its 1,000 military bases at home and a thousand more abroad, is now the most awesome military power ever.
“We’ve slipped away from a true Republic,” Paul told a cheering crowd of followers at a Feb. 18th rally in Kansas City, Mo. “Now we’re slipping into a fascist system where it’s a combination of government and big business and authoritarian rule and the suppression of the individual rights of each and every American citizen.”
According to the Associated Press reporter who covered his speech, “Paul repeatedly denounced President Barack Obama’s recent enactment of a law requiring military custody of anyone suspected to be associated with al-Qaida and involved in planning an attack on the U.S.” (Note: Paul is a consistent defender of individual rights. He also opposed that previous horrific piece of totalitarian legislation mislabeled as the Patriot Act.)
Ralph Munyan, a Republican committeeman who attended the Paul rally, told AP he agreed with Paul’s warnings of a “fascist system” and Paul’s pledges to end the War on Drugs as well as U.S. involvement in wars overseas. By contrast, candidates Mitt Romney, Rick Santorum, and Newt Gingrich are all hawks spoiling for a fight with Iran and who leave peace-minded Republican voters no one to turn to save Paul.
An article on Paul published in the Feb. 27th issue of “The New Yorker” quotes him as saying, “We thought Obama might help us and get us out of some of these messes. But now we’re in more countries than ever—we can’t even keep track of how many places our troops are!”
In the evaluation of “New Yorker” reporter Kelefa Sanneh, “So far, the Paul campaign is neither a groundswell nor a failure. He is slowly collecting delegates…” which could impact the final selection of the nominee even if they do not have the strength to nominate Paul.
Overall, Paul’s message appears to be “doing better, state by state, than he did in 2008,” Sanneh writes, but “he has conspicuously failed to establish himself as this year’s Tea Party candidate.”
“People don’t think of Paul as a top-tier Republican candidate partly because they think of him as a libertarian: anti-tax and anti-bailout, but also antiwar, anti-empire, and, sometimes, anti-Republican,” Sanneh continues.
To date, Paul’s shining contribution to the 2012 campaign is educational—even if the major networks and cable powerhouse Fox News downplay his candidacy in their primary night election coverage. Some of what he says gets through to the public, particularly youthful voters. On the grave issues of totalitarianism at home and tyranny abroad, Paul is the last truth-teller. As such, Paul is a dove fighting for survival among a flock of hawks, and his chances are not bright.
(Sherwood Ross heads a public relations firm for political candidates who favor peace and prosperity.)
The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Those weak losers who care about “law” February 24, 2012Posted by rogerhollander in War, Foreign Policy, Democracy, War on Terror.
Tags: roger hollander, Obama, war on terror, war, foreign policy, terrorists, constitution, rule of law, assassinations, glenn greenwald, mitt romney, drones, presidential power, stephanie cutter, lawrence o'donnell, congressional approval, david rhode
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Friday, Feb 24, 2012 6:59 AM 17:59:03 EST
A top Obama campaign aide uses the language of Bush/Rove/Palin to suggest law is proof of weakness
President Barack Obama speaks during a fundraiser at the Biltmore Hotel in Coral Gables, Fla., Thursday, Feb. 23, 2012. (AP Photo/Susan Walsh) (Credit: AP)
(updated bel0w – Update II)
Everyone Strong and Serious knows that only weak losers who are unqualified to be Commander-in-Chief would care about whether they are allowed under the obsolete, leftist doctrine known as “law” to attack another country or crush the Terrorists. We first learned this from George Bush, who, in a 2004 campaign speech, mocked John Kerry as a law-obsessed weakling this way:
Some are skeptical that the war on terror is really a war at all. My opponent said, and I quote, “The war on terror is less of a military operation, and far more of an intelligence-gathering law enforcement operation.” I disagree—strongly disagree . . . After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got.
We then learned this important lesson from Karl Rove, who in 2005 explained: “Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers. Conservatives saw the savagery of 9/11 and the attacks and prepared for war.”
This same lesson was then taught to us by Sarah Palin, who derided Barack Obama in her 2008 RNC acceptance speech as a law-obsessed Terrorist-coddler: “Al Qaida terrorists still plot to inflict catastrophic harm on America, and he’s worried that someone won’t read them their rights.”
And then we heard the same thing on Wednesday night from Stephanie Cutter, President Obama’s Deputy Campaign Manager. She appeared on MSNBC to discuss that night’s GOP debate with Lawrence O’Donnell, who subjected her to the very hard-hitting adversarial journalism for which that cable channel has become so justifiably admired when it comes to reporting on the Obama administration. After boldly challenging Cutter to explain what President Obama’s large polling lead tells us about the GOP challengers (it shows the Nation adores the leader and hates the GOP), he then invited her to act as “truth squad” and identify the biggest lie told about the President during the GOP debate. This is how she responded:
The most egregious falsehood would be the President’s position on Iran, whether it’s Mitt Romney or Rick Santorum, attacking the President for not being tough enough on Iran. Ask any foreign policy expert out there, we have the toughest sanctions in place today than we’ve had in decades thanks to this President. . . . Now look at Mitt Romney. What he didn’t say on the stage tonight is that just four years ago, when asked the same question on Iran, he said he’d have to check with his lawyers. That does not make a Commander-in-Chief, somebody who has to check with his lawyers.
She went on to mock him for saying he would not invade Pakistan without its consent to get bin Laden. On “checking with his lawyers,” what Romney actually said was this, when asked whether he would attack Iran without first getting Congressional approval:
The other topic that sparked fireworks was a provocative, albeit hypothetical, point of constitutional interpretation – would the U.S. president need Congress’ permission before launching an attack on Iran’s nuclear facilities?
Responding first, Romney said as president, “you sit down with your attorneys” to determine whether such authorization is needed, but he said, “Obviously, the president of the United States has to do what’s in the best interest of the United States to protect us against a potential threat.”
So Romney said that before attacking Iran, he’d want to know if he had the legal authority to do so without Congress, but then strongly suggested that he’d probably do it anyway. As Stephanie Cutter explained, only a weak loser would care whether he actually has the legal authority under the Constitution to start a war without Congressional approval (President Obama showed the Tough Commander-in-Chief Stuff of which he’s made when he prosecuted a war even once Congress affirmatively refused to authorize it).
Of course, Candidate Obama, in 2007, when asked as part of an executive power questionnaire if a President could attack Iran without Congress, consulted with a long list of lawyers to prepare his response and, concerning that specific issue, said: “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” During the campaign, candidate Obama vowed: “No more ignoring the law when it’s inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers.” Hillary Clinton co-sponsored legislation to ban President Bush from attacking Iran without the approval of Congress. Joe Biden actually threatened to impeach Bush if he attacked Iran without Congressional approval.
But that was then, before they were in charge of the war-making machine. Now, Mitt Romney’s tepid suggestion that a President should probably first ascertain his Constitutional powers before attacking another country is, according to the Obama campaign, proof of his losers-ish weakness: “That does not make a Commander-in-Chief, somebody who has to check with his lawyers,” decreed Cutter, following in the illustrious footsteps of George W. Bush, Karl Rove and Sarah Palin (it’s amazingly common how Democrats defend Obama’s foreign policy record by tauntingly pointing to the pile of corpses he’s produced and the punishing sanctions he’s imposed, and by fully embracing the long-standing GOP metrics of “toughness” and arguing that Obama exudes them even more than the GOP itself). Thus: maybe a President has to take that old, antiquated, pre-9/11 oath to “preserve, protect, and defend the Constitution of the United States,” but that doesn’t mean you actually have to believe it. What kind of loser checks with his lawyers and cares about “law”?
UPDATE: Many active-duty service members apparently have a much different understanding of “strength” than Rove, Bush, Palin, Cutter and friends, given that the most anti-war presidential candidate is the one who has raised, by far, the most money from those members of the armed forces.
UPDATE II: David Rohde, the Pulitzer-Prize-winning former New York Times reporter and current Reuters columnist, explains how President Obama has significantly expanded executive power and triggered massive anti-American rage in the world through the use of drones and assassinations — or, as Stephanie Cutter and modern-day Democrats would say, he’s showing how Tough And Strong he is (it should be noted that Rohde, who spent months as a hostage of the Taliban, knows much about what motivates anti-American hatred and Terrorism):
Cheney Praises Strike, But Seeks Apology October 2, 2011Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Dick Cheney, Torture, War on Terror.
Tags: Anwar al-Awlaki, Criminal Justice, Dick Cheney, drone missiles, enhanced interrogation, Liz Cheney, president obama, presidential assassination, presidential killing, presidential power, roger hollander, torture, war on terror
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Roger’s note: Yes, politics indeed makes strange bedfellows. You probably couldn’t think of two more polar opposites than Cheney and Obama with respect to background and personality. But when you choose to take leadership in the American Empire, regardless of who or what you are, you are obliged to follow the dictates of the military, the CIA and the corporate Behemoth: what Eisenhower in his farewell address famously referred to as the military-industrial complex. The is little or no wiggle room, only nuances. Obama tortures less (remember, Bagram is still in business) but kills more civilians than Bush/Cheney did with the drones. And now Obama is executing American citizens with no due process, a fact that, as we can see, gives aid and comfort (and justification) to the architect of the American torture regime.
Published on Sunday, October 2, 2011 by Politico.com
Former Vice President Dick Cheney praised the Obama administration Sunday for ordering the drone strike that killed Anwar al-Awlaki, calling it “a very good strike” and “justified.”
Former Vice President Dick Cheney and his daughter, Liz Cheney. (CNN) But Cheney and his daughter Liz, who appeared together on CNN’s “State of the Union” said President Barack Obama owes the Bush administration an apology.
They said the killing of an American citizen without due process calls into question the president’s past criticisms of the Bush administration for using enhanced interrogation techniques.
“The thing I am waiting for is for the administration to go back and correct something they said two years ago, when they criticized us for quote overreacting to the events of 9/11,” Dick Cheney said. “They in effect said we had walked away from our ideals, taking policy contrary to our ideals when we had enhanced interrogation techniques. They have clearly moved in the direction of taking robust action when they feel it is justified. In this case, it was. They need to go back and reconsider what the president said in Cairo.”
“He said in his Cairo speech (in 2009) for example that he banned torture,” Dick Cheney said. “We were never torturing anyone in the first place. He said We walked away from our basic fundamental ideals. That simply wasn’t the case. What he said then was inaccurate especially now in light of what they are doing with policy.”
Liz Cheney added: “He slandered the nation, and I think he owes an apology to the American people. those are the policies that kept us safe”
But Dick Cheney said Obama was justified in ordering such an attack, even when it involves an American citizen.
“The president has all the authority he needs to order this kind of strike,” Cheney said. “It’s the difference between a law enforcement action and a war. We’re in a war.”
Liz Cheney also praised the administration, but leveled similar criticism of the president’s Cairo speech.
“What concerns me is the damage this president has done,” Liz Cheney said. “The extent to which when the president of the United States goes on on foreign soil saying the United States has abandoned American values … when he does that, he does real damage to our standing in the world.”
Anwar al-Awlaki’s Extrajudicial Murder October 1, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, War.
Tags: aclu, Anwar al-Awlaki, civil liberties, Criminal Justice, drone missiles, due process, executive order, extrajudicial murder, fifth amendment, first amendment, International law, michael ratner, presidential power, roger hollander, rule of law, war on terror
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The law on the use of lethal force by executive order is specific. This assassination broke it – that creates a terrifying precedent
Is this the world we want? Where the president of the United States can place an American citizen, or anyone else for that matter, living outside a war zone on a targeted assassination list, and then have him murdered by drone strike.
This was the very result we at the Center for Constitutional Rights and the ACLU feared when we brought a case in US federal court on behalf of Anwar al-Awlaki’s father, hoping to prevent this targeted killing. We lost the case on procedural grounds, but the judge considered the implications of the practice as raising “serious questions”, asking:
“Can the executive order the assassination of a US citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organisation?”
Yes, Anwar al-Awlaki was a radical Muslim cleric. Yes, his language and speeches were incendiary. He may even have engaged in plots against the United States – but we do not know that because he was never indicted for a crime.
This profile should not have made him a target for a killing without due process and without any effort to capture, arrest and try him. The US government knew his location for purposes of a drone strike, so why was no effort made to arrest him in Yemen, a country that apparently was allied in the US efforts to track him down?
There are – or were – laws about the circumstances in which deadly force can be used, including against those who are bent on causing harm to the United States. Outside of a war zone, as Awlaki was, lethal force can only be employed in the narrowest and most extraordinary circumstances: when there is a concrete, specific and imminent threat of an attack; and even then, deadly force must be a last resort.
The claim, after the fact, by President Obama that Awlaki “operationally directed efforts” to attack the United States was never presented to a court before he was placed on the “kill” list and is untested. Even if President Obama’s claim has some validity, unless Awlaki’s alleged terrorists actions were imminent and unless deadly force employed as a last resort, this killing constitutes murder.
We know the government makes mistakes, lots of them, in giving people a “terrorist” label. Hundreds of men were wrongfully detained at Guantánamo. Should this same government, or any government, be allowed to order people’s killing without due process?
The dire implications of this killing should not be lost on any of us. There appears to be no limit to the president’s power to kill anywhere in the world, even if it involves killing a citizen of his own country. Today, it’s in Yemen; tomorrow, it could be in the UK or even in the United States.
Jose Padilla and how American justice functions September 20, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, War on Terror.
Tags: ashcroft, Criminal Justice, cruel and unusual, dirty bomber, doj, enemy combatant, glenn greenwald, habaes corpus, jose padilla, national security, presidential power, roger hollander, rumsfeld, solitary confinement, troture, war on terror
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(updated below – Update II)
The story of Jose Padilla, continuing through the events of yesterday, expresses so much of the true nature of the War on Terror and especially America’s justice system. In 2002, the American citizen was arrested at Chicago’s O’Hare Airport, publicly labeled by John Ashcroft as The Dirty Bomber, and then imprisoned for the next three years on U.S. soil as an “enemy combatant” without charges of any kind, and denied all contact with the outside world, including even a lawyer. During his lawless incarceration, he was kept not just in extreme solitary confinement but extreme sensory deprivation as well, and was abused and tortured to the point of severe and probably permanent mental incapacity (Bush lawyers told a court that they were unable to produce videos of Padilla’s interrogations because those videos were mysteriously and tragically “lost”).
Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way. That’s because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him.
As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: “Here, where Padilla’s damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims” (emphasis added)). With one rare exception, federal courts, as usual, meekly complied. Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.
The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites. Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla — on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber — and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla’s imprisonment on the grounds of “mootness” (he’s no longer being held without charges so there’s nothing to decide).
At Padilla’s trial, the judge excluded all evidence of the abuse to which he was subjected and even admitted statements he made while in custody before he was Mirandized. Unsurprisingly, Padilla was convicted on charges of “supporting Islamic terrorism overseas” — but not any actual Terrorist plots (“The government’s chief evidence was an application form that government prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda training camp in Afghanistan in 2000″) — and then sentenced to 17 years in prison, all above and beyond the five years he was imprisoned with no due process.
Not content with what was done to Padilla, the Bush DOJ — and then the Obama DOJ — contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government’s. Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla’s arguments. It then took the very unusual step of vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:
Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors . . . .
As the dissenting judge explained, this decision is extraordinary because trial judges — not judges sitting afterward on appeal — are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence. But more so, in this case, a sentence less than the full maximum was warranted because “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.” About that point, the dissenting judge documented:
Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at he military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.
In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority.
Thus: American officials who are responsible for this “inhumane” and “cruel” abuse of detainees act with full impunity, as usual. Those who are its victims are not merely denied all redress (though they are), and do not merely have the courthouse doors slammed in their faces in the name of secrecy, national security and presidential power (though they do), but they are also mercilessly punished to the fullest extent possible.
It should be said that part of what happened here is just the typical politicization of the judiciary, as the two-judge majority was comprised of a hard-core right-wing Reagan/Bush 41 appointee from Alabama (Joel Dubina), while the other was one of Bush 43’s most controversial appointees, the former Alabama Attorney General who was filibustered by the Democrats and allowed onto the bench only by virtue of the “Gang of 14″ compromise (William Pryor). Meanwhile, the dissenting judge was born in Mexico to Syrian parents and, after moving to Miami at the age of 6, became the first female judge (as well as the first Hispanic and Arab American judge) on the Florida Supreme Court (rising to Chief Justice), and was a Clinton appointee to the federal appeals court (Rosemary Barkett); Barkett, incidentally, dissented from an 11th Circuit ruling denying a habeas petition to Troy Davis, the African-American death row inmate scheduled to be executed by the State of Georgia this week despite mountains of evidence showing his innocence. So this episode highlights one of the few genuine differences that remain between the two parties that can truly impact people’s lives: their judicial appointments.
But the overriding theme is what we have seen time and again, that which — as it turns out — is the subject of my book to be released next month: America is plagued by a two-tiered justice system in which political and financial elites enjoy virtually absolute immunity for even the most egregious of crimes, while ordinary Americans (and especially fully stigmatized ones like Padilla) are subject with few defenses to the world’s largest and one of its most merciless systems of punishment. Thus do Jose Padilla’s lawless jailers and torturers walk free and prosper, while no punishment is sufficiently harsh for him.
* * * * *
Almost immediately after I published this, it was announced that Troy Davis’ last chance for clemency has been denied, virtually assuring that a likely innocent man will be killed by the State of Georgia tomorrow. Obviously, everything I just wrote applies in abundance to that event.
UPDATE: As usual, America’s propaganda-spreading, government-serving establishment media spouts blatant falsehoods to justify all this; from ABC News:
Padilla was never even charged with, let alone convicted of, having anything to do with a “dirty bomb.” “Dirty Bomber” was the villain nickname given to him by Bush officials and mindlessy repeated by its media to justify the treatment to which he was subjected. The U.S. Government gave up long ago using this accusation to demonize him (NYT on his conviction: “The dirty bomb accusations were not mentioned during Mr. Padilla’s three-month trial here“), but their lying “watchdog media” servants continue unabated. Who would possibly object to a longer prison term for A Dirty Bomber who tried to detonate radioactive weapons in American cities? The fact that not even the Government charged with him that is no deterrent to its media continuing to claim he did.
UPDATE II: Padilla was consigned to the SuperMax prison in Florence, Colorado to serve his 17-year sentence. The New York Bar Association last week issued a comprehensive study of America’s SuperMax system and concluded:
But 17 years in a torture system like that — on top of the 5 years of abuse he endured — is insufficient: “too lenient.”
Today in Endless War June 21, 2011Posted by rogerhollander in Barack Obama, Iraq and Afghanistan, War.
Tags: afghan pullout, Afghanistan, afghanistan surge, Afghanistan War, afghanistan withdrawal, civilian casualties, endless war, executive power, glenn greenwald, libya, libya bombing, libya war, presidential power, roger hollander, rule of law, surge, war, war on terror
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As usual, there are multiple events from just the last 24 hours vividly highlighting the nature of America’s ongoing — and escalating — posture of Endless War:
(1) In December, 2009, President Obama spoke at West Point and, while announcing his decision to (yet again) deploy more troops to Afghanistan, he assured the nation in a much-heralded vow that “after 18 months, our troops will begin to come home.” He repeated that claim in May, 2010, prompting headlines declaring that Obama has set July, 2011 as the target date for when “withdrawal” from Afghanistan will begin. Now we’re less than two weeks away from that target, and The New York Times today makes clear what “withdrawal” actually means:
President Obama plans to announce his decision on the scale and pace of troop withdrawals from Afghanistan in a speech on Wednesday evening . . . Mr. Obama is considering options that range from a Pentagon-backed proposal to pull out only 5,000 troops this year to an aggressive plan to withdraw within 12 months all 30,000 troops the United States deployed to Afghanistan as part of the surge in December 2009.. . . .
Even after all 30,000 troops are withdrawn, roughly 68,000 troops will remain in Afghanistan, twice the number as when Mr. Obama assumed office.
So even under the most “aggressive” withdrawal plan the President is considering — one that he and media outlets will undoubtedly tout as a “withdrawal plan” (the headline on the NYT front page today: “Obama to Announce Plans for Afghan Pullout”) — there will still be “twice the number” of American troops in that country as there were when George Bush left office and Obama was inaugurated. That’s what “withdrawal” means in American political parlance: doubling the number of troops fighting a foreign war over the course of four years.
(2) So frivolous and lawless are Obama’s excuses for waging war in Libya in violation of the War Powers Resolution that they have provoked incredibly harsh condemnations even from those who typically defend the President. In The Washington Post today, Eugene Robinson aggressively denounces Obama’s arguments for waging war without Congress:
Let’s be honest: President Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.
Blasting dictator Moammar Gaddafi’s troops and installations from above with unmanned drone aircraft may or may not be the right thing to do, but it’s clearly a hostile act. Likewise, providing intelligence, surveillance and logistical support that enable allied planes to attack Gaddafi’s military — and, increasingly, to target Gaddafi himself — can only be considered hostile. These are acts of war.
Yet Obama, with uncommon disregard for both language and logic, takes the position that what we are doing in Libya does not reach the “hostilities” threshold for triggering the War Powers Act, under which presidents must seek congressional approval for any military campaign lasting more than 90 days. House Speaker John Boehner said Obama’s claim doesn’t meet the “straight-face test,” and he’s right. . . .
Most important, what are we doing there? Are we in Libya for altruistic or selfish reasons? Principles or oil? Assuming Gaddafi is eventually deposed or killed, then what? Do we just sail away? Or will we be stuck with yet another ruinously expensive exercise in nation building?
There’s also a moral question to consider. The advent of robotic drone aircraft makes it easier to wage war without suffering casualties. But without risk, can military action even be called war? Or is it really just slaughter?
Afghan War advocate Andrew Exum similarly condemns Obama’s attempt to justify violation of the WPR as “simply one of the stupidest things I’ve read in some time” and — echoing Robinson — proclaims that “it does not pass the laugh test.” And in The New York Times, Yale Law Professor Bruce Ackerman explains that, through their lawyer-cherry-picking, “the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years,” and adds:
From a moral perspective, there is a significant difference between authorizing torture and continuing a bombing campaign that may save thousands of Libyans from slaughter by Col. Muammar el-Qaddafi. But from a legal viewpoint, Mr. Obama is setting an even worse precedent.
Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.
And it’s always worth recalling that this is being done by a President who made restoration of “the rule of law” a centerpiece of his campaign.
(3) In Mother Jones, NYU Law School’s Karen Greenberg notes a trend that was as predictable as it is destructive: rather than signal an end to the “War on Terror,” the killing of Osama bin Laden has been seized upon by the bipartisan National Security State — led by the Obama administration — to expand its posture of Endless War and accelerate its assault on civil liberties. Citing multiple examples subsequent to the bin Laden killing, she correctly observes:
The Obama administration and Congress have interpreted the killing of al-Qaeda’s leader as a virtual license to double down on every “front” in the war on terror. . . . One thing could not be doubted. The administration was visibly using the bin Laden moment to renew George W. Bush’s Global War on Terror (even if without that moniker). . . . In other words, Washington now seems to be engaged in a wholesale post-bin Laden ratification of business as usual, but this time on steroids.
One of the more absurd (though, as a matter of hope, understandable) claims I’ve heard in quite awhile was that the killing of bin Laden would trigger a reduction in the abuses of the War on Terror — as though bin Laden was truly the cause of those abuses rather than the pretext for them. The morning after the bin Laden killing, I wrote the following, addressing those optimistically proclaiming its likely benefits:
Are we going to fight fewer wars or end the ones we’ve started? Are we going to see a restoration of some of the civil liberties which have been eroded at the altar of this scary Villain Mastermind? Is the War on Terror over? Are we Safer now?
Those are rhetorical questions. None of those things will happen. If anything, I can much more easily envision the reverse. Whenever America uses violence in a way that makes its citizens cheer, beam with nationalistic pride, and rally around their leader, more violence is typically guaranteed. Futile decade-long wars in Iraq and Afghanistan may temporarily dampen the nationalistic enthusiasm for war, but two shots to the head of Osama bin Laden — and the We are Great and Good proclamations it engenders — can easily rejuvenate that war love. One can already detect the stench of that in how Pakistan is being talked about: did they harbor bin Laden as it seems and, if so, what price should they pay? We’re feeling good and strong about ourselves again — and righteous — and that’s often the fertile ground for more, not less, aggression.
Read Greenberg’s piece, including the numerous examples she examines, to see if there’s any doubt that this is exactly what is happening.
(4) The war in Libya is starting to resemble virtually every other war: commenced with claimed humanitarian justifications; supported by well-meaning people convinced by the stated, official objectives; hailed as a short and easy task (“days, not weeks”); and then warped into a bloody, protracted conflict far from the original claims and without any real end in sight. Earlier this week, one of the war’s most vocal supporters, Juan Cole, produced a list he entitled “Top Ten Mistakes in the Libya War,” including Obama’s failure to get Congressional approval, that “NATO has focused on a ‘shock and awe’ strategy of pounding the capital, Tripoli,” and that “NATO put its emphasis on taking out command and control in the capital instead of vigorously protecting civilian cities under attack.”
Perhaps that’s because “vigorously protecting civilians” was the pretext for the war, not the actual aim. Yesterday, NATO admitted it killed multiple civilians — apparently including children — by bombing a house in a residential area. It’s difficult to know exactly how many civilians NATO has killed thus far because Western armies don’t count their victims and the Gadaffi government’s claims are obviously unreliable, but whatever is true — including the fact that such killings are not intended — they are the inevitable by-product of invading and bombing other countries. The logic of war ensures that almost every conflict becomes more and more about such killing and less and less about the original lofty excuses for why they were started.
It’s thus not a surprise that 39 neocons — hilariously calling themselves “foreign policy experts” (including John Podhoretz, Liz Cheney, Gary Bauer, Marty Peretz, Karl Rove, Marc Theissen, and Bill Kristol) — issued a letter yesterday urging steadfast support for (and escalation of) the Libya War. Lofty justifications notwithstanding, this is exactly what they favor: long-term, endless domination of the Muslim world through military force and control over their governments. That’s what the war in Libya, intended or not, has become.
(5) Perhaps most amazingly of all, this policy of Endless War endures even as official Washington inexorably plans — in the midst of still-booming economic inequality and suffering — to slash entitlements in the name of austerity. Bizarrely, while more and more Republicans continue to recognize the growing foreign policy split in their Party (Ross Douthat and Joe Scarborough are the latest to side with the “isolationists” against the war-mongering neocons), many establishment liberals seem to be laying the groundwork for those cuts. Yesterday, Matt Yglesias said he was “disillusioned” by alarmism over vast income inequality because, he assured everyone, things aren’t particularly good for the super-rich; meanwhile Digby — in a piece highly worth reading — examines how some liberal pundits (her example is Ezra Klein) seem to be doing the GOP’s work (and, more significantly, the White House’s) in (unwittingly or otherwise) justifying entitlement cuts.
The Disappointing Kagan Pick May 12, 2010Posted by rogerhollander in Criminal Justice.
Tags: bagram, constitution, detainees, due process, elena kagan, executive powers, executive privilege, geneva conventions, habeas corpus, justice, justice kennedy, justice stevens, law, matthew rothschild, obama nomination, presidential power, state secrets, supreme court
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(Roger’s note: it may seem redundant to keep on harping about Obama’s selection of Kagan; all indications are that it is a done deal, i.e. she will be confirmed. I have read many good things about her from progressive blogs and the Obama web site (one commentary that really grated against my sensibility lauded her as a “safe” choice; just what we need, a safe choice to confront the four ultra-conservative ideologues: Justices Alito, Roberts, Scalia and Thomas). I am sure there are indeed good things to be said about soon-to-be Justice Kagan. Too bad that she has a penchant for hiring white males, but much worse, when it comes to presidential powers, she has little respect for such minor considerations as the constitution, the Geneva Conventions, and the concept of habeas corpus. Well, as my daughters always reminded me, nobody’s perfect.)
I’m troubled by Obama’s nomination of Elena Kagan to the Supreme Court.
I’m troubled not because she has no prior experience as a judge. Obama’s right that we need more than cloistered judges on the top bench.
But I wish she had more experience outside of the University of Chicago Law School and Harvard Law School, outside of the Clinton White House and the Obama White House.
These aren’t the widest of worldly experiences.
And her time in the White House is especially troubling.
I’d much prefer having a non-judge who was a former member of Congress, for instance, someone who had an intense personal appreciation for the other branch of government.
Unfortunately, Kagan’s government experience is with the Executive Branch and with upholding its powers. That’s what she did as Solicitor General, remember. She went to bat for the Presidency.
And this President, like George W., has embraced a vast expansion of Executive Powers. So Kagan or her deputies have repeatedly gone into court to invoke the undemocratic doctrine of state secrets. And they’ve gone into court to assert the right to hold any person, captured by the military or the CIA or by some foreign power anywhere in the world, for an indefinite period of time at Bagram Air Base in Afghanistan-without recourse to any due process rights whatsoever.
In Maqaleh v. Gates, she told a federal court: “When it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction.”
It’s no surprise that Kagan disdains due process for detainees. At her confirmation hearings as Solicitor General, Kagan testified that she had no problem with that.
Well, I do. And Justice John Paul Stevens sure did. And the Constitution does. And the Geneva Conventions do.
It’s more than a little too bad that she doesn’t. And that Obama doesn’t.
Stevens, by the way, brought Kennedy along and assigned him the role of writing the decision in the Boumediene case that limited the Executive Branch’s ability to deny due process to detainees.
Wrote Kennedy: “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain.”
So, on this crucial issue of executive power, Kagan is to the right of Kennedy!
I also doubt that Kagan will be better than Stevens in influencing Kennedy, much less the justices on his right. Like Kennedy, Stevens was appointed by a Republican, and Stevens had 12 years on the Court before Kennedy, his junior, came along.
Still, Obama hailed her “skill as a consensus-builder.” But what the court needs now is not a “consensus-builder,” since on many issues there is no basis for consensus. There is a vast ideological gulf. Instead, it needs someone who can advocate as aggressively for a progressive jurisprudence as Roberts, Alito, Scalia, and Thomas advocate for a reactionary one.
The Supreme Court is not Harvard Law School. And Kagan will not be the dean. She’ll be the junior member. To the extent that she is determined to be a consensus builder, the conservatives are more likely to drag her their way than she is likely to drag them in a progressive direction.
More’s the pity.
© 2010 The Progressive
Matthew Rothschild is the editor of The Progressive magazine.
The Case Against Elena Kagan April 13, 2010Posted by rogerhollander in Criminal Justice.
Tags: civil liberties, constitution, daniel novack, elena kagan, executive power, glenn greenwald, presidential power, roger hollander, rule of law, supreme court, War Crimes
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It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements. Tom Goldstein of SCOTUSblog has declared her “the prohibitive front-runner” and predicts: “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.” The New Yorker‘s Jeffrey Toobin made the same prediction.
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post‘s Ruth Marcus predicted: “The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.” Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by “the Right,” I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
Consider how amazing it is that such a prospect is even possible. Democrats around the country worked extremely hard to elect a Democratic President, a huge majority in the House, and 59 Democratic Senators — only to watch as the Supreme Court is moved further the Right? Even for those who struggle to find good reasons to vote for Democrats, the prospect of a better Supreme Court remains a significant motive (the day after Obama’s election, I wrote that everyone who believed in the Constitution and basic civil liberties should be happy at the result due to the numerous Supreme Court appointments Obama would likely make, even if for no other reason).
There will, of course, be some Democrats who will be convinced that any nominee Obama chooses is the right one by virtue of being Obama’s choice. But for those who want to make an informed, rational judgment, it’s worthwhile to know her record. I’ve tried here to subject that record to as comprehensive and objective an assessment as possible. And now is the time to do this, because if Kagan is nominated, it’s virtually certain that she will be confirmed. There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?). If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.
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Kagan’s lack of a record
One of the difficulties in assessing Kagan’s judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That’s not only because she’s never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama’s Solicitor General, where (like any lawyer) she was obligated to defend the administration’s policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: “it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”
As I’ve previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan’s lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination. That’s true for two reasons:
First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark, and who could easily end up as the Democrats’ version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President’s party supports? As Goldstein wrote of Kagan:
Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.
Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?
This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O’Connor and instead choose Sam Alito. As Frum put it on PBS during the fight over Miers:
Stakes are so enormous in this seat. This is something, as Bill Kristol said, the conservatives have worked for, for a long time. . . . I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . . Part of what isn’t good enough is for the president to say — although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think — “I have a secret, I know something and nobody else does. And I’m going to go with my personal knowledge.”
Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.
[It’s ironic that the anti-Miers case was grounded in conservatives’ refusal to place too much faith and trust in their President’s judgment. Can anyone envision Democrats mounting a serious and sustained campaign against Obama’s Supreme Court nominee of the type mounted against Bush by conservatives, whom progressives like to accuse of blind leader/party loyalty?]
Frum’s anti-Miers argument prevailed, and conservatives got what they wanted: Sam Alito, someone with a long record of advocacy for their judicial philosophy who they knew would be the kind of Justice they wanted for decades to come. Part of the conservative case against Miers (i.e., that she lacked intellectual heft) is plainly inapplicable to the unquestionably intelligent Kagan, but the bulk of it is directly applicable: why should progressives who care about the Supreme Court possibly accept someone whose judicial and Constitutional philosophy can barely be discerned?
When it came time to replace David Souter, Sonia Sotomayor was far from the ideal nominee for many progressives, yet virtually all supported her nomination (as did I, vigorously) because it was clear that she would be essentially the same kind of Justice as Souter, and would thus maintain the Court’s balance. By contrast, conservatives rightly perceived that replacing O’Connor was a once-in-a-generation opportunity to shape the Court to their beliefs about judicial philosophy, and they thus refused to accept a nominee about whom so little was known.
Under the circumstances that prevail now, why would progressives possibly demand any less? After all, Obama is now replacing the Justice who has become the leader of the “liberal” wing of the Supreme Court (accepting the dubious premise that there is even is such a thing as a “liberal” wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great progressives Justices in history — Louis Brandeis, William O. Douglas, and Stevens. Given that, why wouldn’t progressives insist on a nominee whom they know will approach legal questions at least as progressively as Stevens did — or, dare to dream, have a nominee be more progressive than the Justice being replaced, something that hasn’t happened literally in decades? Acquiescing to a Kagan nomination would mean accepting someone who could easily move well to the Right of Stevens, thus taking the whole Supreme Court with her.
Second, I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It’s not hyperbole to say that it spawned a profound Constitutional crisis.
Recognizing the severity of this radicalism, numerous legal academicians used their platforms — and created new ones — to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush’s policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal — Kagan’s not-at-all-progressive Deputy Solicitor General — was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees — in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).
Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It’s possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing — other than when she endorsed the core Bush template during her Solicitor General confirmation hearing. As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General: “she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.” The Boston Globe similarly pointed out that she “has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush’s efforts to combat terrorism.”
Given the severity of the crisis posed by Bush/Cheney lawlessness, what justifies someone with Kagan’s platform — Dean of Harvard Law School and former Clinton White House lawyer — remaining utterly silent in the face of that assault? Even if one believes that a Law School Dean should generally be attentive to institution-building, didn’t the severity of the legal crisis spawned by Bush and Cheney merit serious opposition from those in a position to voice it? Before any progressive considers supporting her nomination to the Court, shouldn’t they be able to point to some evidence, somewhere, that she opposed the core claims used to prop up the Bush/Cheney assault on the Constitution and the rule of law?
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The sparse record of Kagan’s views
Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly. Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.
The only other real glimpse into Kagan’s judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton’s then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress. This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the “unitary executive.” I don’t want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.
Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted. Kagan’s 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:
“She is certainly a fan of presidential power,” said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.
Similarly — and very revealingly — even the moderate Neal Katyal, now Kagan’s Deputy, emphatically criticized Kagan’s theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures. Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):
Such claims of executive power are not limited to the current administration, nor are they limited to politicians. Take, for example, Dean Elena Kagan’s rich celebration of presidential administration. Kagan, herself a former political appointee, lauded the President’s ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President’s ability to overrule bureaucrats “energize[s] regulatory policy” because only “the President has the ability to effect comprehensive, coherent change in administrative policymaking” . . . .
Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.
As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a “feeble executive” that was beloved by Bush/Cheney legal theorists, and she hailed “strong, executive vigor.” On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority — perhaps on the far end, almost certainly much further than where Stevens falls. It’s perhaps unsurprising that a President — such as Barack Obama — would want someone on the Supreme Court who is quite deferential to executive authority. But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn’t these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?
Kagan’s record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives. She is, by all appearances, solidly pro-choice and in favor of gay equality. But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan’s prospects as a Supreme Court nominee:
“I want a Brennan or a Marshall, someone clearly on the liberal side,” said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.
“I don’t think Kagan is at that end of the liberal spectrum,” said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. “Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role” . . . ..
Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.
“There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed,” said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.
And even on the issues where she has been impressive — such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination — her record is ultimately rather muddled. After preening around for years justifying her ban on military recruiters by decrying the military’s ban on gays as “a profound wrong — a moral injustice of the first order,” she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment). One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person’s character when they are willing to flamboyantly fight against “profound wrongs” and “moral injustices of the first order” — only as long as there is no cost involved.
What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives — from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan. If progressives aren’t willing to fight Obama for the Supreme Court, what are they willing to fight him for?
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Most of the research presented here was done by Daniel Novack, a second-year law student at NYU School of Law. Novack, who works with me on many posts I write, also contributed several substantive points.
© 2010 Salon.com
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.