Category Archives: Constitution

Supremes Refuse to Hear Torture Appeal

15 Tuesday Jun 2010

Posted by in Bill of Rights, Constitution, Justice Department, Obama administration, Supreme Court, terrorism, torture, war on terror

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That old-fashioned notion of equal justice under the law was dealt another blow by the Supreme Court yesterday as they refused to hear the appeal of Maher Arar, a Canadian citizen who was detained, tortured, and imprisoned for over a year, without charges, because he was labeled an “al-Qaeda suspect” by the Bush administration. And in what is become an all too familiar occurrence:

“…the Obama administration chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary.”

Have to look forward, dontcha know. Mother Jones has a synopsis of Mr. Arar’s ordeal:

“On Sept. 26, 2002, Arar was detained by American authorities during a layover at New York’s John F. Kennedy airport. He was interrogated. Less than two weeks later, he shackled and hooded and placed on a plane bound for Jordan. Once in Jordan, he was transferred overland to Syria. While in Syria, Arar was tortured at the behest of the American government, according to a 1,200-page report released by a Canadian government inquiry that concluded up in 2006.

Here’s how Arar describes a few of his first days in Syria:

Early in the morning on October 10 Arar is taken downstairs to a basement. The guard opens the door and Arar sees for the first time the cell he will live in for the following ten months and ten days.

It is three feet wide, six feet deep and seven feet high. It has a metal door, with a small opening which does not let in light because of a piece of metal on the outside for sliding things into the cell. There is a one by two foot opening in the ceiling with iron bars. This opening is below another ceiling and lets in just a tiny shaft of light. Cats urinate through the ceiling traps of these cells, often onto the prisoners. Rats wander there too.

Early the next morning Arar is taken upstairs for intense interrogation. He is beaten on his palms, wrists, lower back and hips with a shredded black electrical cable which is about two inches in diameter.

The next day Arar is interrogated and beaten on and off for eighteen hours. Arar begs them to stop. He is asked if he received military training in Afghanistan, and he falsely confesses and says yes [another testimony to the effectiveness of “enhanced interrogation techniques”]. This is the first time Arar is ever questioned about Afghanistan. They ask at which camp, and provide him with a list, and he picks one of the camps listed.

In October 2003—more than a year after he had been sent to Syria—Arar was finally returned to Canada. He was never charged with a crime.”

And for this no one will be held accountable. But hey, at least the DOJ has their priorities straight. A federal prosecutor is investigating allegations of blood doping in the Tour de France.

“Modernizing Miranda” by Gutting the Sixth Amendment

15 Saturday May 2010

Posted by in Bill of Rights, Constitution, George W. Bush, Justice Department, Obama, Obama administration, Politics, terrorism, war on terror

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It’s becoming clearer what Attorney General Eric Holder meant when he spoke of the need to “modernize” Miranda. (Even though he also said that “giving Miranda warnings has not had a negative impact on our ability to obtain information from terrorism suspects” ). According to this latest proposal under consideration by the Obama administration, such a “modernization” includes doing away with the Sixth Amendment rights to a speedy trial and to counsel.

“President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The goal of both measures would be to open a window of time after an arrest in which interrogators could question a terrorism suspect without an interruption that might cause the prisoner to stop talking. It is not clear how long of a delay the administration is considering seeking.”

President Obama has been criticized by civil libertarians in the past for continuing the policies of the Bush administration. This one goes further, it’s beyond Bush:

“Anthony Romero, the executive director of the American Civil Liberties Union, assailed the Obama administration for considering such ideas. He noted that the administration of President George W. Bush, which was heavily criticized by civil-liberties groups, never proposed such modifications to criminal procedures.”

Marcy Wheeler points out how this denies the accused of their right to counsel:

“The way it works…is you’re arrested and you’re brought before the judge (either to be charged or arraigned) and if you don’t have a lawyer, the judge makes sure you have one.

[…]

“[T]he Administration wants to “modernize” Miranda. They want to postpone bringing alleged terrorists before a Court (though it’s not clear why). Are they, by delaying court appearances, trying to at the same time delay the time when alleged terrorists get assigned lawyers? Are they trying to dissuade alleged terrorists from having lawyers?”

And Jeralyn at Talk Left warns of the slippery slope:

“Taking rights taken from terror suspects today just makes it easier to take them from all of us tomorrow. It’s ironic that this is one right even the Bush Administration didn’t try and tinker with, and its our Democratic president showing so little respect for the rule of law.”

More constitutional rights and protections bite the dust in the course of carrying out the “war on terror.” But hey, whatever it takes to keep us safe, right President Bush Obama?

Good Advice for Michael Steele: “Try Thinking Before You Speak”

11 Tuesday May 2010

Posted by in Conservatives, Constitution, Obama, Politics, Republicans, Supreme Court, Uncategorized

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Republican National Committee Chairman Michael Steele should have realized he stepped in it when the National Review advised him to “try thinking before you speak,” referring to Steele’s opening salvo following President Obama’s nomination of Elena Kagan to the Supreme Court. Steele released a statement criticizing Kagan for her support of Justice Thurgood Marshall’s speech in which he said that the Constitution as originally conceived and drafted was “defective.”

Had Mr. Steele taken the time to look into the context of Justice Marshall’s statement he might have found that Marshall was referring to the Three-Fifths compromise in Article 1 Section 2, which counted slaves as three-fifths of a person. I don’t know about Mr’ Steele, but I would call that a serious “defect.”

Justice Marshall also said the it took several constitutional amendments and a Civil War to right this wrong. Again, had Chairman Steele taken the time to look at the copy of the Constitution I’m sure he carries in his pocket he could have read the 13th, 14th, and 15th Amendments to find out the Marshall was correct. I assume Steele has heard of the Civil War, but maybe I take too much for granted.

But as is their habit, once the RNC had the shovel in their hands, they kept digging. Doug Heye posted this at gop.com:

“In the same law review article, Kagan endorses the view that the Court’s primary role is to “show special solicitude” for people a judge has empathy for.

In the article about her former boss, Justice Thurgood Marshall, Kagan wrote:

For in Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged.  It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion.

The majority of Americans want a justice who understands that the Founders intended the Court to serve as a neutral arbiter of disputes.  The question for Kagan is whether she believes in a ‘modern Constitution’ shaped by activist judges pursuing personal political agendas or whether she believes in basing judicial decisions based on the Constitution and the rule of law.”

Would that include “activist judges” like the majority on the Roberts Court who overturned more than a hundred years of legal precedent and greatly expanded the parameters of the case to “pursue their personal political agenda” by granting corporations the rights of individuals in Citizens United v. FEC? Those kind of “activist judges?”

President Obama, Have You No Principles?

06 Saturday Mar 2010

Posted by in Bill of Rights, Constitution, Justice Department, Obama, Politics, war on terror

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An open letter to President Obama and Attorney General Holder:

President Obama, have you no principles sir? Is there nothing for which you are willing to take an unwavering stand? Nothing which you are unwilling to sacrifice on the altar of political expediency? Nothing that will deter your quest for the Holy Grail of bi-partisanship? Nothing that is done without a moistened finger in the wind gauging current public opinion? If this story from the Washington Post about the decision not to try Khalid Sheikh Mohammed and the other 9/11 co-conspirators in civilian court is true, sadly the answers to all of the above questions appear to be no, nothing.

Do you remember your Nobel Peace Prize acceptance speech, sir? Let me refresh your memory (emphasis added):

“We lose ourselves when we compromise the very ideals that we fight to defend. And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.”

This is one of those times, sir, one of those times when it is hard. This is one of those times when ones true character is tested. When the right thing to do and the popular thing to do are not one and the same, as history has shown us they seldom are.

Our constitutional rights and protections–in which our system of justice is anchored–and the rule of law are not, and should never be, subject to political compromise and deal-making. The Fifth and Sixth Amendments are not bargaining chips to be dealt away in the pursuit of Republican support for the closing of the prison at Guantanamo Bay.

Furthermore, who is prosecuted and how they are prosecuted is not the discretion of the president of the United States, and most assuredly not that of his chief of staff. That duty falls to the man whom you nominated and whom the Senate confirmed as Attorney General, Eric Holder. Once upon a time we had a Justice Department independent from political influence. That line of demarcation was blurred, if not completely erased, by the previous administration. You were elected on the promise of restoring that independence, but apparently that was only campaign rhetoric.

Attorney General Holder, you have a duty here too, sir. By virtue of the position which you hold, you are chief law enforcement official in this country. If you believe strongly that KSM and the others should be tried according to Article III, and if you want to be seen as more than an attorney-on-retainer who does the bidding of the White House, you have the obligation to tell the president to either make this decision yours and your alone, based solely on legal grounds, or resign your office.

One of your predecessors in the office of Attorney General faced a similar situation. He was ordered by the president to do something which went against his principles and was in violation of his duties as AG. Rather than be seen as a puppet of that administration, he resigned on the spot, as did his deputy when given the same order. His name was Elliot Richardson and the president was Richard Nixon, in the constitutional crisis now known as the infamous “Saturday Night Massacre” of the Watergate era.

This is no less a constitutional matter, sir. Your obligation is no less than was Mr. Richardson’s.

Democrats Cave on Torture Amendment: So What Else Is New?

26 Friday Feb 2010

Posted by in Constitution, Democrats, Dick Cheney, Justice Department, Obama, Politics, Republicans, terrorism, torture, Uncategorized, war on terror

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While all the attention in Washington yesterday was focused on the posturing and pontificating over health care reform, there was something else going on. Democratic Congressman Sylvestre Reyes, chairman of the House Intelligence Committee, proposed an amendment to the 2010 Intelligence Authorization Act. The amendment is called the Cruel, Inhuman, and Degrading Interrogation Prohibition Act of 2010 which, in essence, does nothing more than codify what already exists in Articles 1 and 16 of the United Nations Convention Against Torture. You know that treaty which under Article VI of the Constitution is supposed to be the “supreme Law of the Land,” but was signed and ratified pre-9/11 so is no longer applicable, apparently.

The amendment prohibits such acts as waterboarding, beatings, sleep deprivation, and mock executions among others. In other words, pretty much the chart toppers on the Cheney/Ashcroft/Rumsfeld/Yoo/Bybee hit parade. It applies to any “U.S. national, or any officer, employee, contractor, or subcontractor of the Federal government,” with punishment for violation being “fine or imprisonment for not more than 15 years, or both,” unless death results. Then the imprisonment is “any term of years or for life.”

And right on cue, here came the torture defenders, led by Liz Cheney, playing the predictable “keeping us safe” card:

“Late last night, Democrats in the House of Representatives inserted a provision dubbed “The Cruel, Inhuman, and Degrading Interrogation Act of 2010” into the intelligence authorization bill. This new language targets the US intelligence community with criminal penalties for using methods they have deemed necessary for keeping America safe. These methods have further been found by the Department of Justice to be both legal and in keeping with our international obligations.”

Sorry Liz, but just because they were found legal by the pretzel logic of Daddy’s Justice Department (and sadly, found to be merely “poor judgment” by the current Justice Department) doesn’t mean they are legal. It just means that laws and treaties have become an a la carte menu in post 9/11 America. We now pick and choose which ones to enforce and which ones to ignore. Again, sadly.

According to Marc Ambinder at the Atlantic, the amendment is also not popular at 1600 Pennsylvania Avenue (sigh):

“The White House isn’t happy; they’ve already threatened to veto the bill because it, in their mind, it infringes upon the rights of the executive branch by forcing the administration to disclose more about intelligence operations to more members of Congress.”

That sounds a lot like a previous administration to me. (Double sigh).

And speaking of right on cue, all House Republicans had to do was give the insinuation that they would accuse Democrats of being ‘soft on terror’ and ‘coddling terrorists’ and the gutless, spineless, Democratic leadership pulled the bill.

Spencer Ackerman’s Open Letter to Liz Cheney

22 Monday Feb 2010

Posted by in Constitution, Dick Cheney, Justice Department, Obama, Politics, torture, Uncategorized

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Spencer Ackerman at the Washington Independent has an “Open Letter to Liz Cheney on Torture”:

Dear Ms. Cheney,

I don’t know if you saw ‘Meet The Press’ this morning, but a general you may have heard of named David Petraeus — he’s the commander of U.S. forces in the Middle East and South Asia and is the most distinguished Army general since Colin Powell — graced your television. He was asked about whether the U.S. ought to torture Mullah Abdul Ghani Baradar, the deputy commander of the Taliban, recently captured in Pakistan. “I have always been on record, in fact since 2003, with the concept of living our values,” Petraeus replied. Every time the U.S. took what he called “expedient measures” around the Geneva Conventions, those deviations just “turned around and bitten us on our backside.” The effect of torture at Abu Ghraib is “non-biodegradable,” he continued, and boasted that as commander of the 101st Airborne in Iraq, he ordered his men to ignore any instruction to use techniques outside the Army Field Manual on Interrogations. Besides, the non-torture techniques that manual has long instructed? “That works,” he said. “That is our experience.”

But hey. You’re a former deputy assistant secretary of state! You obviously know better than the man who implemented the surge in Iraq. Why don’t you enlighten Gen. Petraeus about all the glories of torture? And since you consider “enhanced interrogation” so necessary to secure the country, perhaps there’s a full page ad you’ll take out in a major newspaper?

Cordially,
Spencer

Would that Ackerman’s letter might get Ms. Cheney’s mind right. But I think the only means to that end would be Papa Dick in his rightful place before a war crimes tribunal. But sadly, the Obama Obstruction of Justice Department and the Look Forward, Not Back Doctrine of the Constitutional Scholar-in-Chief isn’t going to allow that to happen.

Sadly, we will continue to be subjected to the former VP, and by extension his daughter, proudly extolling the virtues of torture, undeterred by any thoughts of being held accountable.

Sadly indeed.

Obama DOJ v. Fourth Amendment

13 Saturday Feb 2010

Posted by in Bill of Rights, Constitution, Justice Department, Obama

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Meet the new boss, same as the old boss:

“The government argued on Friday that it should be allowed access to people’s cell-phone records to help track suspected criminals… A Justice Department attorney urged a federal appeals court to overturn lower court rulings denying it the right to seek information from communications companies about the call activity of specific numbers that authorities believe are associated with criminal activity.”

Believe? What happened to probable cause?

“Law enforcement agencies hope to obtain cell phone location data from cellular providers without first showing probable cause of a crime _ and without the customer’s knowledge. The data comes from cell phone towers, and in densely populated cities can pinpoint a person’s location to within a few hundred yards.

“An individual has no Fourth Amendment-protected privacy interest in business records, such as cell-site usage information, that are kept, maintained and used by a cell phone company,” [Justice Department lawyer Mark] Eckenwiler wrote in his brief.”

One of the judges on the Third Circuit panel hearing the case, Judge Dolores Sloviter, questioned Eckenwiler:

“You know there are governments in the world that would like to know where some of their people are or have been. Can the government assure us that it will never try to find out these things? Don’t we have to be concerned about this? Not this government right now, but a government?”

Yes, Judge Sloviter. This government. Right now.