| The Erosion of Civil
Liberties
Hotel Mini-bar Keys Open Diebold Voting Machines
(here)
Mark
Their Names: Garrison Kellior's
excellent editorial on those who voted for torture here
("I would not send my college kid off for a semester abroad
if I were you.")
Maybe It's Time To Waterboard George Bush (here)
Nice, pretty pictures of democracy in action! Here!
Gitmo Vacation Land Brochure!
"If you don't violate someone's human rights some of
the time, you probably aren't doing your job," said one official
who has supervised the capture and transfer of accused terrorists.
Quote here
An
Excellent Speech of Tim Robbins'
Torture Diaries
"Enemy Combatants" at Guantanamo Bay
Photos like these make it clear that we (the USA) sure do "love
freedom" and our enemies sure do "hate freedom",
in the words of our utterly retarded president.
Maybe these guys in the red suits sorta hate the freedom of being
imprisoned without being charged with a crime, without access to
a lawyer, and without the possibility of a trial.
They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety. Benjamin Franklin
"This so-called ill treatment and torture in detention centers,
stories of which were spread everywhere among the people, and later
by the prisoners who were freed … were not, as some assumed,
inflicted methodically, but were excesses committed by individual
prison guards, their deputies, and men who laid violent hands on
the detainees." A quote from Rumsfeld? Try Nazi Germany
(here)
Bush
on the Constitution: "Just a Goddam Piece of Paper"
Enemas and Cat Food Commercials
Our Friends in Uzbekistan
Torture Diaries
Children Detained at Guantanamo
Cocoa Puff Terrorists
Free Prayer Rugs
Held Without Charges, without Bail, Incommunicado
"Hitler" Producer Fired Over Remarks
Don't Disappear Me!
And the State of the Union Is ... None of Your
Business
Miranda Rights In Jeopardy
Questioning Terror Suspects in a Dark and Surreal
World
Military Recruiters in Schools
Andrew Sullivan's Reaction to Bush's Proposed Constitutional Amendment
Against Gay Marriage
Fascist Wingnut Judges
Judicial Selection After Trent Lott
Here Come De Theocracy
The Republican Takeover of the Courts
The Silencing of Gideon's Trumpet
Molly Ivins' Excellent Article on Torture
I can't get over this feeling of unreality, that I am actually
sitting here writing about our country having a gulag of secret
prisons in which it tortures people. I have loved America all my
life, even though I have often disagreed with the government. But
this seems to me so preposterous, so monstrous. (complete
article here)
Fresh Details Emerge on Harsh Methods at Guantánamo
By NEIL A. LEWIS
Sometime after Mohamed al-Kahtani was imprisoned at Guantánamo
around the beginning of 2003, military officials believed they had
a prize on their hands - someone who was perhaps intended to have
been a hijacker in the Sept. 11 plot.
But his interrogation was not yielding much, so they decided in
the middle of 2003 to try a new tactic. Mr. Kahtani, a Saudi, was
given a tranquilizer, put in sensory deprivation garb with blackened
goggles, and hustled aboard a plane that was supposedly taking him
to the Middle East.
After hours in the air, the plane landed back at the United States
naval base at Guantánamo Bay, Cuba, where he was not returned
to the regular prison compound but put in an isolation cell in the
base's brig. There, he was subjected to harsh interrogation procedures
that he was encouraged to believe were being conducted by Egyptian
national security operatives.
The account of Mr. Kahtani's treatment given to The New York Times
recently by military intelligence officials and interrogators is
the latest of several developments that have severely damaged the
military's longstanding public version of how the detention and
interrogation center at Guantánamo operated.
Interviews with former intelligence officers and interrogators provided
new details and confirmed earlier accounts of inmates being shackled
for hours and left to soil themselves while exposed to blaring music
or the insistent meowing of a cat-food commercial. In addition,
some may have been forcibly given enemas as punishment. (full
article here)
Torture Diaries
January 9, 2002: Justice Department lawyers John
Yoo and Robert J. Delahunty argue that "customary international
law of armed conflict in no way binds...the President or the U.S.
Armed Forces." (here)
*
January 25, 2002: White House counsel Alberto Gonzales
warns that treatment of Taliban prisoners could be interpreted as
war crimes. To avoid this possibility, he recommends that President
Bush exempt captured Al Qaeda and Taliban fighters from the Geneva
Conventions. (here)
*
August 2002: A Justice Department memo about torture
says that "necessity and self-defense could provide justifications
that would eliminate any criminal liability." Translation:
torture is OK if we really, really think we need to do it. (here)
*
April 2003: The Department of Defense says that
"(the prohibition against torture) must be construed as inapplicable
to interrogations undertaken pursuant to his commander-in chief
authority." In other words, as long as the president approves
it, torture is OK. (here)
They're Friends of Ours
6500 people are currently imprisoned in Uzbekistan for their religious
or political beliefs.
U.S. military aid to Uzbekistan has increased 1800 percent since
2001. (here)
US
Detains Children at Guantanamo Bay
Guardian/UK
The US military has admitted that children aged 16 years and younger
are among the detainees being interrogated at its prison camp in
Guantanamo Bay, Cuba.
Lieutenant Colonel Barry Johnson, a US military spokesman, yesterday
said all the teenagers being held were "captured as active
combatants against US forces", and described them as "enemy
combatants".
The children, some of whom have been held at Guantanamo for over
a year, are imprisoned in separate cells from the adult detainees,
Lt Col Johnson said. He would say only that the teenagers are "very
few, a very small number" and would not say how old the youngest
prisoner is.
The US military confirmed their presence after Australia's ABC television
reported that children were being held at Guantanamo, the controversial
detention center where prisoners from the war in Afghanistan have
been held by the US, in breach of the Geneva conventions, for over
a year. They have not been charged or allowed access to lawyers.
"That the US sees nothing wrong with holding children at Guantanamo
and interrogating them is a shocking indicator of how cavalier the
Bush administration has become about respecting human rights,"
said an Amnesty International spokesman, Alistair Hodgett.
Lt Col Johnson said the children were being held because "they
have potential to provide important information in the ongoing war
on terrorism".
In September 2002, Canadian officials reported that a 15-year-old
Canadian had been captured on July 27 after being badly wounded
in a firefight in eastern Afghanistan. Canada's prime minister,
Jean Chrétien said he was seeking consular access to the
boy.
Last week, Toronto's Globe and Mail newspaper reported that the
youth, now 16, is being held in Guantanamo and that US officials
have refused access to Canadian officials.
Lawyers have blamed the indefinite detentions for increasing depression
and suicide attempts at the camp, which received the first detainees
in January 2001.
According to the US military, there have been 25 suicide attempts
by 17 prisoners at Camp X-Ray, with 15 attempts made this year.
Just this Monday the US military announced that one prisoner, who
it said was under supervision in the acute care unit of a new mental
health ward, made a repeated suicide attempt. (here)
Terrorists Steal Cocoa
Puffs
...Ashcroft touted "a list of more than 280
cases that the department cites as evidence that it is winning the
war on terrorism." The list has been "regularly highlighted
by Ashcroft and other Justice Department officials in speeches and
congressional testimony, and even by President Bush."
But when the LA Times asked for documentation of the Justice Department
claims the "department declined to provide a complete accounting
of the terrorism-related prosecutions that Ashcroft and others cite."
After the LA Times filed a Freedom of Information Act request they
received "a highly redacted accounting covering only about
half the number that Ashcroft trumpets."
Included in that list were "two New Jersey men, operators of
small grocery stores, who were convicted of accepting hundreds of
boxes of stolen breakfast cereal, in a crime that occurred 16 months
before the terrorist hijackings." A Justice Department spokesman
admitted that some of the cases included in the count "don't
necessarily involve terrorists or people convicted of terrorism-related
crimes." (here)
Let Freedom Ring! Real Prayer Rugs if You Sing!
GETTING OUT OF Guantanamo: While citizens Jose Padilla and Yassir
Hamdi are held as enemy combatants in the U.S. , hundreds of non-citizens
are being held with the same designation (and essentially non-existent
legal rights) in Guantanamo Bay , Cuba. According to Time, U.S.
officials have concluded that "some detainees were there because
they had been kidnapped by Afghan warlords and sold for the bounty
the U.S. was offering." About 140 detainees, called "the
easiest 20%," have been slated for release but the military
"is waiting for a politically propitious time to release them."
(Question: When is it politically unpropitious to release the innocent?)
Meanwhile, in the last 18 months, among the 660 detainees –
who "cannot challenge their arrests or plead their cases or
even talk to a lawyer" – there have been 32 suicide attempts.
Each week, about half of the detainees are interrogated "for
sessions that last from anywhere from 1 to 16 hours." Those
who are cooperative are transferred to "Camp Four" which
features thicker mattresses, pillows and real prayer rugs.
(here)
Held Without Charges, without
Bail, Incommunicado
George W. Bush's Constitution
The Village Voice/Nat Hentoff
'Does It Take a Lifetime to Question a Man?'
It is hard to imagine that America would look kindly on a foreign
government that demanded the right to hold some of its own citizens
in prison, incommunicado, denying them access to legal assistance
for as long as it thought necessary, without ever charging them
with a crime.
Nevertheless, that is the position that George Bush's administration
has tried to defend in the courts with regard to American citizens
whom it has deemed to be "enemy combatants." —The
Economist, London, December 14, 2002
The imprisonment of "enemy combatant" Yaser Esam Hamdi
in a naval brig in the United States is not a matter of concern
to most Americans, since they do not know of Mr. Hamdi's isolation
from the Bill of Rights, and might not care if they did. But the
Supreme Court will ultimately decide whether George W. Bush's Constitution
will replace—in significant parts—the Constitution that
most Americans are also not familiar with.
When Mr. Hamdi's case—though not Mr. Hamdi personally—came
before federal judge Robert Doumar in Norfolk, Virginia, that veteran
jurist, appointed by Ronald Reagan, was astonished at the sweep
of the government's declaration that the president had the right
to personally put Hamdi in the brig and strip him of all his constitutional
rights after claiming that he was an "enemy combatant."
It is also the government's contention that the courts have minimal
jurisdiction over the commander in chief as he locks up Americans
he calls "enemy combatants" during our war against terrorism.
Nonetheless, Judge Doumar insisted that the government explain
itself, and was handed a two-page sworn document, written by Michael
Mobbs, a Defense Department official, justifying the president's
totally depriving Hamdi of his freedom indefinitely—without
his being charged with any crime.
Think about that. This American citizen was officially stripped
of all his constitutional rights and this flimsy two-page document
is the government's explanation before the court.
If the government had more information, why didn't it show that
evidence in camera (to the judge in his private chambers)?
I doubt that the relatively few Americans—not counting constitutional
lawyers—who have been following this crucial case know how
thoroughly Judge Doumar discredited the government's explanation
for its indefinite punishment—without charges—of Hamdi.
In addition to Mr. Mobbs's pieces of paper, the government prosecutor
also told Judge Doumar that the Defense Department had to hold Hamdi
for interrogation. And since the war on terrorism has no defined
end in sight, he must be "detained" indefinitely.
Said Judge Doumar: "How long does it take to question a man?
A year? Two years? Ten years? A lifetime? How long?"
Under this intensive fire, the prosecutor, Gregory G. Garre, an
assistant to Solicitor General Theodore Olson, had only this response:
"The present detention is lawful."
As Judge Doumar said after he had denounced the two-page declaration:
"So the Constitution doesn't apply to Mr. Hamdi?"
I will follow this case through the Fourth Circuit Court of Appeals
and then, I expect, to the United States Supreme Court. Those nine
men and women will decide whether the essential liberties in the
Framers' Constitution have been removed by George W. Bush. It's
a pity the Democratic Party cares much less about civil liberties
than about Bush's tax cuts.(here)
"Hitler"
Producer Fired Over Remarks
Associated Press
CBS' snake-bit miniseries "Hitler: The Rise of Evil" has
been bitten again: The company behind the the four-hour biopic has
dropped one of the program's top producers after he compared the
Bush administration's pre-emptive strike policy on Iraq with the
rise of Nazism.
Ed Gernon, the veteran producer behind well-known TV movies including
"Joan of Arc" and "The Matthew Shepard Story,"
was fired Sunday, according to a report in The Hollywood Reporter.
In the latest edition of TV Guide, Gernon was quoted as saying that
the rise of Hitler was a cautionary tale for the United States,
because "it basically boils down to an entire nation gripped
by fear, who ultimately chose to give up their civil rights and
plunged the whole world into war. I can't think of a better time
to examine this history." (here)
Don't Disappear
Me!
The Bush Administration's final draft of the Domestic Security Enhancement
Act (DSEA, also being called Patriot 2) provides that any person
who supports an organization the executive branch of the government
deems "terrorist" can be summarily stripped of their U.S.
citizenship. They would then be subject to deportment or indefinite
detainment without trial, with no need to prove
that the person had been engaged in criminal or harmful conduct.
For the full text of the legislation: Bill
of Rights Defense Committee
(New York Times Magazine)
The Patriot Act has given government agencies wide latitude to invoke
the Foreign Intelligence Surveillance Act and get around judicial
restraints on search, seizure and surveillance of American citizens.
FISA, originally intended to hunt international spies, permits the
authorities to wiretap virtually at will and break into people's
homes to plant bugs or copy documents. Last year, surveillance requests
by the federal government under FISA outnumbered for the first time
in U.S. history all of those under domestic law. New legislative
proposals by the Justice Department now seek to take the Patriot
Act's anti terror powers several steps further, including the right
to strip terror suspects of their U.S. citizenship.
The government would not be required to disclose the identity of
anyone detained in connection with a terror investigation. An American
citizen suspected of being part of a terrorist conspiracy could
be held by investigators without anyone being notified. He could
simply disappear. (here)
And the State
of the Union Is ... None of Your Business
by Charles Sheehan-Miles
The grossly misnamed Patriot Act codified the most severe assault
on American Constitutional liberties since the dreaded McCarthy
Era. "Terrorist organizations" are redefined as any group
of two or more people who have threatened to use violence for any
reason.
Terrorism is defined as any attempt to use coercion to influence
political activity. If you give money to a local health care clinic
which is also funded by a foundation which also gives money to Hamas,
you are associated with terrorists.
If you go to a political rally and participate in civil disobedience
where the police arrest you, the law calls you a terrorist. The
new definitions are overly broad and subject to wide abuse.
Of course, in the new America, you don't have to be a terrorist
to get locked up. Today, there are American citizens being held
without access to attorneys, without charges, without benefit of
constitutional protections, solely on the word of the attorney general.
While one of those was captured on a battlefield, another was arrested
in an American city. I'm not aware of any exceptions in the Constitution
that say the basic fundamental rights of Americans apply only until
the President says otherwise.
Here is a list of a disturbing collection of too much power concentrated
in one branch of government:
-Today, right now, the government can search your home without
telling you, and without a warrant.
-Today, the government can find out what you've read at the library
and what you've bought at the bookstore, again without a warrant.
-The government can arrest the local librarian for telling you the
government asked about your reading habits.
-The government can listen in on conversations between you and your
attorney and use the information against you.
-The government can declare an emergency and forcefully vaccinate
you and your family, without exception, using both approved and
experimental drugs. And if you, as a civilian, get sick from the
shots (as thousands of Gulf War veterans did), you won't have any
legal recourse.
-The government has a new Homeland Security Department rivaling
the powers of the KGB. There is little oversight. There are no labor
law protections for the workers who blow the whistle on waste, fraud
and abuse. Like the KGB, the work of Homeland Security will be conducted
in secret, as the Freedom of Information Act was gutted last year.
Today, we have a government more concerned with secrecy than open
government, more concerned with corporate rights than human rights,
and more concerned with dishing out huge defense contracts to campaign
contributors than assisting unemployed workers facing foreclosure.
(here)
Miranda Rights In Jeopardy
Associated Press
For five years, Oliverio Martinez has been blind and paralyzed
as the result of a police shooting. Now the 34-year-old farm worker
is at the center of a U.S. Supreme Court case which could determine
whether decades of restraints on police interrogations should be
discarded.
The blanket requirement for a Miranda warning to all suspects that
they have the right to remain silent could end up in the rubbish
bin of legal history if the court concludes police were justified
in aggressively questioning the gravely wounded Martinez while he
screamed in agony.
"Ay! I am dying! ... What are you doing to me?" Martinez
is heard screaming on a tape recording of the persistent interrogation
by police Sgt. Ben Chavez in Oxnard, an agricultural city of 182,000
about 60 miles northwest of Los Angeles.
"If you are going to die, tell me what happened," the
officer said. He continued the questioning in an ambulance and in
the emergency room as Martinez pleaded for treatment. At times,
he left the room to allow medical personnel to work, but he returned
and continued pressing for answers that might show the shooting
was justified in the event of a civil claim. Martinez had been shot
in his back and both eyes.
No Miranda warning was given.
The 9th U.S. Circuit Court of Appeals agreed with a federal judge
that the confession was coerced and cannot be used as evidence against
Martinez in his excessive-force civil case against the city. It
said Chavez should have known that questioning a man who had been
shot five times, was crying out for treatment and had been given
no Miranda warning was a violation of his constitutional rights.
(here)
Questioning Terror Suspects
in a Dark and Surreal World
By DON VAN NATTA Jr. New York Times
The capture of Khalid Shaikh Mohammed provides American authorities
with their best opportunity yet to prevent attacks by Al Qaeda and
track down Osama bin Laden. But the detention also presents a tactical
and moral challenge when it comes to the interrogation techniques
used to obtain vital information.
Senior American officials said physical torture would not be used
against Mr. Mohammed, regarded as the operations chief of Al Qaeda
and mastermind of the Sept. 11 attacks. They said his interrogation
would rely on what they consider acceptable techniques like sleep
and light deprivation and the temporary withholding of food, water,
access to sunlight and medical attention.
American officials acknowledged that such techniques were recently
applied as part of the interrogation of Abu Zubaydah, the highest-ranking
Qaeda operative in custody until the capture of Mr. Mohammed. Painkillers
were withheld from Mr. Zubaydah, who was shot several times during
his capture in Pakistan.
Routine techniques include covering suspects' heads with black hoods
for hours at a time and forcing them to stand or kneel in uncomfortable
positions in extreme cold or heat, American and other officials
familiar with interrogations said.
Interrogations of important Qaeda operatives like Mr. Mohammed occur
at isolated locations outside the jurisdiction of American law.
Intelligence officials acknowledged that some suspects had been
turned over to security services in countries known to employ torture.
George J. Tenet, the director of central intelligence, said in December
that suspects interrogated overseas had produced important information.
Critics assert that transferring Qaeda suspects to countries where
torture is believed common — like Egypt, Jordan and Saudi
Arabia — violates American law and the 1984 international
convention against torture, which bans such transfers. (here)
Military Recruiters
in Schools
BOSTON (AP) - A little-noticed provision in a new federal education
law is requiring high schools to hand over to military recruiters
some key information about its juniors and seniors: name, address
and phone number. The No Child Left Behind law, signed last January,
pumps billions into education but also gives military recruiters
access to the names, addresses and phone numbers of students in
22,000 schools. The law also says that schools must give the military
the same access to their campuses that businesses and college recruiters
enjoy.
School systems that fail to comply could lose federal money.
In New York City, Daniel Alterman was taken aback when his 15-year-old
son, a junior at Stuyvesant High, received a recruitment letter.
"Parents are in the dark," Alterman said. "It freaked
me out. I didn't sign up to support the military effort."
Alterman said after he opted out, his son received another letter,
this one promoting scholarships. ``It was very seductive. They didn't
say anything about risk to personal safety,'' Alterman said. (here)
Minnesota's Senator Mark Dayton as reported in the
Minneapolis Star-Tribune 2/29/04: "Jesus Christ didn't say,
'Love only thy opposite-sex neighbors,' " Dayton said, noting
that Christ was silent on homosexuality even as he repeatedly condemned
adultery and divorce. "No one has suggested a constitutional
amendment against adultery and divorce," he said.
Right-wing Columnist
Andrew Sullivan's Reaction to Bush's Proposed Constitutional Amendment
Against Gay Marriage
WAR IS DECLARED: The president launched a war
today against the civil rights of gay citizens and their families.
And just as importantly, he launched a war to defile the most sacred
document in the land. Rather than allow the contentious and difficult
issue of equal marriage rights to be fought over in the states,
rather than let politics and the law take their course, rather than
keep the Constitution out of the culture wars, this president wants
to drag the very founding document into his re-election campaign.
He is proposing to remove civil rights from one group of American
citizens - and do so in the Constitution itself. The message could
not be plainer: these citizens do not fully belong in America. Their
relationships must be stigmatized in the very Constitution itself.
The document that should be uniting the country will now be used
to divide it, to single out a group of people for discrimination
itself, and to do so for narrow electoral purposes. Not since the
horrifying legacy of Constitutional racial discrimination in this
country has such a goal been even thought of, let alone pursued.
Those of us who supported this president in 2000, who have backed
him whole-heartedly during the war, who have endured scorn from
our peers as a result, who trusted that this president was indeed
a uniter rather than a divider, now know the truth.
NO MORE PROFOUND AN ATTACK: This president wants our families denied
civil protection and civil acknowledgment. He wants us stigmatized
not just by a law, not just by his inability even to call us by
name, not by his minions on the religious right. He wants us stigmatized
in the very founding document of America. There can be no more profound
attack on a minority in the United States - or on the promise of
freedom that America represents. That very tactic is so shocking
in its prejudice, so clear in its intent, so extreme in its implications
that it leaves people of good will little lee-way.
This president has now made the Republican party an emblem of exclusion
and division and intolerance. Gay people will now regard it as their
enemy for generations - and rightly so.
I knew this was coming, but the way in which it has been delivered
and the actual fact of its occurrence is so deeply depressing it
is still hard to absorb. But the result is clear, at least for those
who care about the Constitution and care about civil rights. We
must oppose this extremism with everything we can muster. We must
appeal to the fair-minded center of the country that balks at the
hatred and fear that much of the religious right feeds on. We must
prevent this graffiti from being written on a document every person
in this country should be able to regard as their own. This struggle
is hard but it is also easy. The president has made it easy. He's
a simple man and he divides the world into friends and foes. He
has now made a whole group of Americans - and their families and
their friends - his enemy. We have no alternative but to defend
ourselves and our families from this attack. And we will.
(here)
Fun New Judges
(here)
Bush’s appointees are openly ideological, and many have deep
roots in the Republican Party. Several have run for office as Republicans.
A recent Senate hearing on the nomination of James Leon Holmes of
Arkansas is illustrative. As Democrat Charles Schumer read aloud
from articles written by Holmes and his wife for religious magazines,
the Republicans on the Judiciary Committee—all white men with
gray hair, an aide notes—sat silently with their eyes cast
downward. “It’s almost as though they were ashamed,”
says the aide. The source of their dismay was a 1997 article for
Arkansas Catholic magazine in which Holmes advanced the position
that “the wife is to subordinate herself to her husband,”
and “the woman is to place herself under the authority of
the man.” It’s not the kind of rhetoric that appeals
to soccer moms.
In another article, Holmes dismissed concerns that a constitutional
ban on abortion would make it hard for rape victims to get the procedure.
“Concern for rape victims is a red herring because conceptions
from rape occur with approximately the same frequency as snowfall
in Miami,” Holmes asserted. According to the American Journal
of Obstetrics and Gynecology, each year more than 30,000 women in
American become pregnant because of rape or incest. Miami experiences
snow about once every hundred years.
Democrats are also mounting filibusters against two other Bush appointees,
Texas judge Priscilla Owen and California judge Carolyn Kuhl. Owen’s
opposition to reproductive rights and her rigid interpretation of
the Texas parental-notification law form the basis for the Democrats’
dissent. Opposition to Kuhl centers on her role as a young lawyer
in Reagan’s Justice Department wanting to push the Supreme
Court to overturn Roe v. Wade, and more recently, her position in
a case having to do with the privacy of a breast-cancer patient
in the presence of a drug-company salesman. Kuhl ruled that no right
to privacy existed since the patient, who was embarrassed and confused,
didn’t ask questions and object when her doctor brought in
the salesman and examined her in his presence. These nominees are
“ideologically insane almost” says a Democratic aide.
Judicial Selection After
Trent Lott
New York Times
The administration has handed judicial selection over to the Republican
Party's right wing. This has resulted in the naming of several judges
whose views on race raise troubling questions. Michael McConnell,
who won confirmation to the Colorado-based United States Court of
Appeals for the 10th Circuit, had criticized a 1983 Supreme Court
decision that denied tax-exempt status to Bob Jones University,
which banned interracial dating by its students. Dennis Shedd, a
former aide to Senator Strom Thurmond, was elevated to the Court
of Appeals for the Fourth Circuit in Virginia. This was despite
civil rights groups' claims that as a trial judge he ruled against
every employment discrimination plaintiff who appeared before him,
and made insensitive remarks when he rejected a suit to remove the
Confederate flag from the South Carolina Statehouse.
Going forward, the White House and the Senate must raise the bar.
There has been talk that the Bush administration may re nominate
Charles Pickering, a Trent Lott protégé, to the Louisiana-based
Court of Appeals for the Fifth Circuit. Judge Pickering was rejected
in March by the Senate Judiciary Committee, after concerns were
raised about contacts he had, as a state legislator in the 1970's,
with Mississippi's segregationist Sovereignty Commission, and his
unusual efforts, as a trial judge, to persuade prosecutors to reduce
the sentence of a man convicted of cross-burning. The White House
should not re nominate him.
The records of other nominees require close scrutiny. Carolyn Kuhl,
whose nomination to the San Francisco-based Court of Appeals for
the Ninth Circuit is pending, helped as a young Justice Department
lawyer to convince the attorney general to support Bob Jones University's
bid to maintain its tax-exempt status. Senators should demand to
know why. (here)
Here Come De Theocracy
Bush installs right-wing Alabama Attorney General William Pryor
to the 11th Circuit Court of Appeals.
Bush claimed the action was necessary because some Senators were
using "unprecedented obstructionist tactics" to prevent
the confirmation of his judicial nominees.
In fact, out of 177 Bush judicial nominees, the Senate has confirmed
171 – or nearly 97%. By contrast, during the last six years
of previous Administration, conservatives in Congress blocked a
full 20% of President Clinton's judicial nominees. While the President
claims that the stonewalling of his nominations is "hurting
our judicial system," since he took office federal judicial
vacancies are down from 9.9% to 4.6%. William Pryor's nomination
was blocked for one reason – his extremist views render him
unqualified to sit on the federal bench. Scorecard here.
PRYOR – HOSTILE TO CIVIL RIGHTS: Pryor testified
before the Senate Judiciary committee in 1997 that he believed that
Section 5 of the Voting Rights Act (VRA) was "an affront to
federalism and an expensive burden that has far outlived its usefulness"
and should be repealed. Section 5 of the VRA is an important part
of the Act that helps ensure that changes in voting-related procedures
in jurisdictions with a specific history of voting discrimination
have "no discriminatory purpose or effect" by requiring
pre-clearance with the Justice Department or a federal district
court. Pryor also urged Congress to "consider modifying other
provisions of the Act that have led to extraordinary abuses of judicial
power."
PRYOR – HOSTILE TO WOMEN'S RIGHTS: Pryor considers
Roe v. Wade to be "the worst abomination of constitutional
law in our nation's history." Further, he has defended restrictions
on abortion in Alabama even when they lacked "the constitutionally
required exception to protect the health of the pregnant woman."
Pryor supported legislation in Alabama which would have required
Alabama to appoint "a lawyer representing the state whenever
a female under age 18 sought to have an abortion without her parents'
consent." Pryor argued that the government attorney "should
be involved to protect the state's interest in preserving life."
His views detailed (here)
PRYOR – HOSTILE TO GAYS AND LESBIANS: Pryor
filed a amicus brief with the Supreme Court that equates private
consensual sex between same-sex couples with "activities like
prostitution, adultery, necrophilia, bestiality, possession of child
pornography and even incest and pedophilia."
PRYOR – OPPOSES GENUINE SEPARATION OF CHURCH AND STATE:
Pryor refers to the constitutional prohibition on government interference
with religion as "the so-called wall of separation between
church and state." In a 1997 speech, he stated "the Declaration
of Independence and the Constitution of the United States are rooted
in a Christian perspective of the nature of government and the nature
of man.
The challenge of the next millennium will be to preserve the American
experiment by restoring its Christian perspective." Pryor blames
the Supreme Court for "building a wall that has increasingly
excluded god and religion from our public life." He has repeatedly
attempted to gain approval for "government-sponsored, captive
audience prayer" in schools and other settings.
More on this Very Sick Judge here.
The Republican Takeover
of the Courts
By Warren Richey | Staff writer of The Christian Science Monitor
Presidential proclamations, policies, and legislative initiatives
may come and go, but federal judicial appointments are for life.
With that in mind, the Bush administration and its conservative
allies are gearing up to take full advantage of midterm election
victories.
Not since the Reagan revolution of the early 1980s has an American
president been so well positioned to reshape the federal judiciary
in a conservative mold.
With a slim Republican majority now in the US Senate, President
Bush is poised to quickly and efficiently fill most of 79 existing
judicial vacancies.
As a result, the balance of power between Democratic and Republican
appointees on the nation's powerful federal appeals courts is about
to shift dramatically in the Republicans' favor.
Legal experts say there isn't much Democrats can do about it. And
the prospect of a new crop of conservative judges has many liberal
groups, including women's rights and abortion-rights organizations,
on the defensive.
At the same time, many conservatives are celebrating. "The
long night in the desert might finally be over," says Roger
Pilon of the Cato Institute's Center for Constitutional Studies
in Washington.
All the major hot-button issues – reproductive rights, free
speech, affirmative action, capital punishment – that work
their way to the US Supreme Court arrive first at district and circuit
courts.
With as few as seven strategically placed appointments to vacancies,the
Bush administration would be in a position to establish a Republican-appointee
majority among active judges on 11 of the 13 federal appeals courts.
"The appellate courts are important because as a practical
matter they have the final say in most matters of law," Mr.
Gerhardt adds. "The US Supreme Court decides only a small number
of cases." (here)
The Silencing
of Gideon's Trumpet
New York Times Magazine (full and excellent article here)
By ANTHONY LEWIS
Forty-one years ago, a poor, isolated prisoner in Florida, the least
influential of Americans, wrote a letter to the Supreme Court --
a letter in pencil, on lined prison paper -- claiming that he had
been wrongly denied the right to a lawyer when he was convicted.
The Supreme Court agreed to hear his case and found that the Constitution
required counsel to be provided in all serious criminal cases for
defendants too poor to hire their own. Clarence Earl Gideon would
have a new trial, this time with a lawyer.
The new jury found him not guilty: a happy ending not only for him
but also for the principle that a lawyer's help is crucial for criminal
defendants.
After the Supreme Court decision, I recognized that it would be,
as I wrote then, ''an enormous social task to bring to life the
dream of Gideon v. Wainwright -- the dream of a vast, diverse country
in which every man charged with crime will be capably defended .
. . sure of the support needed to make an adequate defense.'' On
this 40th anniversary, how have we done? I take my answer from a
recent paper by Bruce Jacob, the lawyer who represented the State
of Florida in the Supreme Court, arguing against Gideon's claim
of a right to counsel. ''I hoped that legislatures would meet the
challenge,'' Jacob wrote. ''That was at a time in my life when I
still believed that legislators want to do the right thing. . .
. The record of the courts in fulfilling the hopes represented by
Gideon is a dismal one.''
I was covering the Supreme Court when it decided Gideon v. Wainright,
and the case has always had special meaning for me. It is painful
to hear Bruce Jacob express disappointment at today's courtroom
inadequacies. Even more alarming is the assertion by the Bush administration
that in a whole new class of cases it can deny the right to counsel
altogether. Those are the cases of American citizens designated
by Bush as ''enemy combatants.'' One of them is Jose Padilla, born
in Brooklyn in 1970 and arrested by federal agents last May at O'Hare
International Airport in Chicago. The administration claims that
it can hold Padilla in solitary confinement indefinitely, without
trial and without access to a lawyer.
In two cases now before the courts, Attorney General John Ashcroft
is asserting that President Bush has the power to detain any American
citizen indefinitely, in solitary confinement, without access to
a lawyer, if he, the president, designates the detainee an ''enemy
combatant.'' The detainee cannot effectively challenge that designation.
A court may hold a habeas corpus proceeding, but the government
need produce only its own assertions of evidence, not subject to
cross-examination. ''Some evidence'' will suffice -- that is, any
evidence, however unchecked and second-hand. That is the claim being
made by the law officers of the United States.
I would not have believed that an attorney general would argue that
an American could be held indefinitely without being able to speak
to a lawyer. I seriously doubt that any attorney general in the
years since Gideon, except the present occupant of the office, would
have made that claim.
One of the pending cases concerns Jose Padilla, who became a gang
member, was arrested half a dozen times and served several jail
sentences. He became a Muslim. After traveling, in Pakistan among
other places, Padilla flew into O'Hare Airport last May 8 and was
arrested by federal agents. He was first detained as a material
witness before a New York federal grand jury investigating the Sept.
11 terrorist attack on the World Trade Center. A judge appointed
a lawyer for him and set a hearing for June 11. But on June 10 Ashcroft,
who happened to be in Moscow, made a televised statement about Padilla.
''We have captured a known terrorist,'' Ashcroft said. His arrest
''disrupted an unfolding terrorist plot to attack the United States
by exploding a radioactive 'dirty bomb.''' There has been no way
for Padilla, or his lawyer, to challenge that statement, or for
the news media to test its truth. It was a conviction by government
announcement.
Padilla is confined in a Navy brig in South Carolina. The lawyer
originally appointed to represent him in the material witness proceeding,
Donna R. Newman, has been trying to see him -- without success.
A federal judge, Michael Mukasey, decided that she should have a
chance to talk with him for the limited purpose of examining the
evidence produced by the government in support of his designation
as an ''enemy combatant.'' But that decision was challenged anew
by government lawyers.
They offered an affidavit by the director of the Defense Intelligence
Agency, Vice Adm. Lowell E. Jacoby. He said successful interrogation
of a prisoner depends largely on ''creating an atmosphere of dependency
and trust between the subject and interrogator. Developing the kind
of relationship . . . necessary for effective interrogations . .
. can take a significant amount of time. There are numerous examples
of situations where interrogators have been unable to obtain valuable
intelligence from a subject until months, or even years, after the
interrogation process began.'' Admiral Jacoby said any access to
counsel, however brief, ''can undo months of work and may permanently
shut down the interrogation process.''
There is a certain paradox in Admiral Jacoby's affidavit. The very
fact that extended interrogation in the absence of counsel may break
a subject's will is one reason that the right to counsel is guaranteed
in the criminal law. It is the basis of the Miranda rule.
The government argues, and in the other ''enemy combatant'' case
the United States Court of Appeals for the Fourth Circuit agreed,
that the Sixth Amendment's guarantee of the right to counsel ''in
all criminal prosecutions'' does not apply because Padilla is not
being prosecuted. In other words, the government can hold an American
in prison for life without letting him see a lawyer if it takes
care not to charge him with a crime and try him. James Madison and
the others who added the Sixth Amendment and the rest of the Bill
of Rights to the Constitution in 1791 would surely have regarded
that argument as sophistry.
The Supreme Court has held fast to the principle that the right
to consult a lawyer is, as Justice Black said, ''fundamental.''
It is a far more conservative court than the one that decided the
Gideon case, with William Rehnquist as chief justice instead of
Earl Warren. It has overruled or narrowed many precedents. But it
has repeatedly reaffirmed its holding in Gideon v. Wainwright.
That is what makes the Bush administration's claim in the ''enemy
combatant'' cases so extraordinary. Of course, Jose Padilla and
the other man being held, Yasser Esam Hamdi, are not in precisely
Gideon's position. They are not being prosecuted; they are being
held indefinitely, without charges, in solitary confinement. They
are not looking for counsel; they both already have lawyers, highly
competent ones appointed by federal judges. But they are not allowed
to talk to them. Those differences from Gideon's situation seem
to make their need to consult the lawyers they have, if anything,
more compelling.
The constitutional argument made by Ashcroft and his aides also
seems imperfect. Perhaps the Sixth Amendment guarantee of counsel
''in all criminal prosecutions'' can be reasoned away as inapplicable
to indefinite detention without charge, though I think the framers
would have been astonished at the invention of a severe penalty
for a suspect with fewer rights than he would have as a criminal
defendant.
But the Constitution also includes the Fifth Amendment. It provides
that ''no person shall . . . be deprived of life, liberty or property,
without due process of law.'' Jose Padilla has been deprived of
his liberty -- forever, for all he knows. Has he had due process
of law?
The Bush administration's answer to that question is essentially
this: in a war against terrorism, any process that the president
says is essential to the war is due process. Government lawyers
argue that in wartime, courts must defer to the president's judgment.
The denial of counsel to Jose Padilla, then, is an aspect of something
larger. About the time the Gideon case was decided, we began to
hear about the imperial presidency. The terrorist attacks of Sept.
11, 2001, and now the war on Iraq have renewed that concept in even
more extreme form. Bush has little trouble with a supine Congress.
He wants the Constitution, too, as our judges enforce it, to yield
to the supremacy of the president.
Anthony Lewis is a former New York Times columnist and the author
of ''Gideon's Trumpet.'
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