Perennial War Warps Our Country.

I know its a shocking concept but our country has "been at war with terror" since the invasion of Afghanistan in 2001. Been at war is in quotes if only because the type of war the US has engaged in is not at all the traditional idea of war. The home front has remained mostly in a state of normality. Certainly there have been some changes like the security theater employed at airports but for the most part Americans go through their every day lives without feeling the war or seeing it on tv. Yet our country is straining to accommodate both of these attitudes. How do we reconcile American values with perennial war?

Republicans in our country live in Hobbes' state of nature. They cower in fear demanding an absolute security that can never be achieved. That fear has lead us to lock up some people accused of terror related activities around the world. We lock them in dark forbidding places afraid that they might get out again under any conditions. We have done this in contradiction with the American system of justice. Thus we face dilemmas like this one.

An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court.

The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.

The Justice Department has argued that U.S. District Judge John D. Bates erred in granting the three detainees, two Yemenis and a Tunisian, the right to contest their confinements in federal court. The detainees claim that they were captured outside Afghanistan and brought to the U.S. prison at Bagram Air Base, northeast of the capital of Kabul. They have been held for at least six years, their attorneys say.

The entire idea surrounding the concept of enemy combatants is that the united States may be in a war where we dont have the time or the resources to transport, collect evidence or to pursue the traditional methods of justice. Its a protection that in case we captured someone on the battle field we could hold them until we could try them. The argument and the foundation for it takes on a new light when we understand that the United States is always at war.

The adventure in Afghanistan may come to an end in a few years or it may not. If we are dedicated to building a liberal democracy there then it must certainly go on for another decade. In any case the time when trying the people at Bagram will pose no inconvenience and will be easy will never come. The alleged diplomatic issues will always exist. The nature of the conflict and the attitude we have taken ensure that there will always be reasons not to try these people if we allow it. It is easier to let them rot where they are. out of sight out of mind.

In many ways the reticence of the court should bring apprehension for people who value civil liberties. The judicial branch, even with a right leaning Court, seems like the last best hope. The last bulwark against the rising tide of neocon national security. The legislative and executive branches have decided its better to go with the flow than fight the tide. Obama's civil liberties credentials were not particularly string after the Fisa flop but there was hope based on his rhetoric that real positive action might be coming from his administration. One year in its not looking good as Adam Serwer writes in a tapped article Has Obama Abandoned The Obama Doctrine?,

This is irreconcilable with an administration that has pursued indefinite detention, a two-tiered legal system for trying suspected terrorists, and now an ethnic profiling system for Muslim travelers that will do little more than strengthen al-Qaeda's narrative of a clash of civilizations between Islam and the West, and alienate Muslims the president claims he wants to "engage on the basis of mutual interest and mutual respect." His administration, while outlawing torture, is studiously protecting its legal architecture, so that it might rise like a corpse in a George Romero film the next time the GOP takes the White House. What are these, if not policy positions driven entirely by the kind of fear the Obama Doctrine was created to disperse?

The president has not abandoned the high-minded rhetoric of the Obama Doctrine. But he has abandoned virtually all the substantive policy positions it was created to defend, leaving the administration with a shrinking patch of ground perpetually under siege from Republicans who want to turn the United States into a country that tortures people suspected of crimes and denies them any semblance of due process. It's impossible for me to see how the president isn't on the verge of squandering the "new beginning" with Muslims communities he claims is vital to preserving American security.

All of these actions regarding national security and our justice system are warping our country towards the bunker security state. There is a line in Hunt for Red October where the two defecting Russians talk about how in America they let you go from state to state with no papers. Our liberties and freedoms are at the core of America. The longer we try and maintain war as normal life the worse off our country will be. I believe that the Appeals Court should grant the habeas right as a step toward reconciling with our tradition of justice and as a step away from the perennial state of war.

We cannot continue to make the normal life one with the mindset of war.

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Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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Is Obama paying back David Paterson?

There has been a minor dust up regarding President Obama urging Gov Paterson of NY not to seek reelection. We saw Michael Steele make the assertion that it was "curious" on why the White House would ask New York Gov. David Paterson (D) not to run for reelection in 2010.

"I found that to be stunning, that the White House would send word to one of only two black governors in the country not to run for reelection,"
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"It raises a curious point for me. I think Gov. Paterson's numbers are about the same as [New Jersey] Gov. [Jon] Corzine's. The president is with Gov. Corzine."

The implication here is that Obama is paying back Gov Paterson for not choosing Caroline Kennedy to replace Sen Hillary Clinton. This is the argument made forcefully by Professor Darren Hutchinson at Dissenting Justice here and here. I disagree with Professor Hutchinsons analysis on several points. He makes the link between Corzine just as Steele does but this is a bad comparison as steve benen points out.

First, Corzine and Paterson are not exactly in the same boat, and the comparison is silly. Corzine is running this year; polls show him trailing but closing the gap; and there wasn't a stronger candidate last year, waiting in the wings. Paterson is up next year; polls show him with almost comically low approval ratings; and state Attorney General Andrew Cuomo (D) is strongly favored by voters, both among Democrats and among voters in general.

Professor Hutchinson makes several other points involving the role that race plays here. I am not going to deny that patterson's opponents may be racially motivated. i dont have evidence either way. What i could say is that it places the president in an awkward position when Gov Paterson runs and gets trounced by Cuomo. He has to either support one of the only black governors in the country in a losing bid risking charges of racial bias or he has to back cuomo instigating charges such as the ones that prof. hutchinson makes, favoritism for elites, pay for play etc. It is better for Obama to try and head off this type of choice.

Developing a deeper bench of african american candidates is an important goal. backing a losing candidate because he is black is not. paterson running creates a mess and its not something obama will want to deal with. obama has shown himself to be adverse to these types of complications. he wants the safe noncontroversial candidate ala joe lieberman over lamont.

The point is that i think there are very compelling reasons for Obama to urge Paterson not to run that have nothing to do with the Kennedy appointment fiasco. the world wont end if paterson runs but it will make obama's life more difficult.

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Terrorist Soon to Be Let Loose Among Us

Of Course i am using the Harry Reid definition of let loose among us. "loose" ofcourse means that they will be locked up securely in prisons and guarded heavily with an almost zero possibility of anything "bad" happening. There are two groups of people who are about to be set loose. the first is the 4 guys that they just apprehended for allegedly conspiring to detonate a bomb outside a Jewish temple and to shoot military planes with guided missiles. The second is Ahmed Ghailani indicted for the 1998 bombings of U.S. embassies in Africa.

Hilzoy points out the obvious problem with the first group of newly arrested terror suspects,

This raises the difficult question: what should we do with these would-be terrorists while they await trial? And if they are convicted, what then? I assume that if it's too dangerous to move people at Guantanamo to the United States, it must be much too dangerous to allow these jihadists to run loose in our prisons. After all, they might provide financing for other jihadists from their supermax cells, or radicalize other prisoners, or use special Terrorist Mind Control Techniques to create a whole army of brainwashed convicts under their complete control.

I'd suggest killing them, cutting them into pieces, and shipping their parts to parts unknown immediately (trials? who can afford trials under these circumstances?), if I weren't afraid that some hitherto unknown al Qaeda trick might allow their reanimated body parts to slither around in search of one another and, eventually, reconstitute themselves as the Islamofascist Undead. Earlier, I thought we should send prisoners into space, but that was before I realized that that would allow them to join forces with the Klingons.

In fact, I can't think of a single thing to do that would not make matters worse.

We're doomed.

What is the president going to do? He should totally ship them to -tartaros- Gitmo because we cannot afford to have these terrorists loose among us. this is exactly what harry reid foresaw. Im sorry for doubting his intelligence earlier. But wait it gets scarier as another terrorist is set to be loose among us.

A top al-Qaida suspect held at Guantanamo Bay will be sent to New York for trial, an Obama administration official said Wednesday, a major step in President Barack Obama's plan to close the detention center by early next year. Ahmed Ghailani would be the first Guantanamo detainee brought to the U.S. and the first to face trial in a civilian criminal court.

An official, speaking on condition of anonymity because the person was not authorized to disclose the decision, told The Associated Press the administration has decided to bring Ghailani to trial in New York. He was indicted there for the 1998 bombings of U.S. embassies in Africa — attacks that killed 224 people, including 12 Americans. It was not immediately clear when the transfer would occur.

Ghailani, a Tanzanian, was categorized as a high-value detainee by U.S. authorities after he was captured in Pakistan in 2004 and transferred to the detention center at the U.S. naval base in Cuba two years later.

Do you see that? This guy was loose in America already! Now president Obama is getting ready to let him loose again. I now want answers, an investigation, into how many,for how long, and why, these alleged terrorists were already allowed to be loose among us at one point in time. It simply shocks the conscience. I look froward to President Obama's speech on this topic.

I also look forward to harry reid leading the charge against trying mr Ghailani in the United States because of the danger he poses. I believe that might help his sagging pole numbers as he bravely declares America is unable to secure one man for trial on its own shores without the utter collapse of our security.

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Military Commissions and Terror Trial Policy

Its official. The Obama detainee policy and legal anti-terror regime is a mess. Its a seemingly dirty mess that highlights the most disappointing area of the Obama presidency. This stuff isnt easy. Still, the Obama administration lacks a clear, cohesive, sound policy for dealing with detainees. The apparent center piece of the legal regime for dealing with accused terrorists is going to be the odious and much derided military commission system. The problems with the use of these commissions are well documented and include the ability to use hearsay as well as tortured information at trial. There is also a lingering question of whether or not, even with these advantages, the government can gain the convictions it seeks.

I believe that the Obama policy regarding these detainees at Gitmo is to get them in a trial and convicted. Clean out the legacy detainees from the Bush era using the military commissions. After this, Obama would seek to establish a new system to deal with future detainees. The Obama administration sees the commissions as the best shot at getting convictions and this is probably the case. However even in instances with great advantage the Government might not prevail. Take for example Ahmed v. Obama .

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases.
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Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.
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What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification the legal standard of government authority to detain that the Obama Administration has laid out, allowed the government to try to prove its case on the lowest standard of proof, conceded that the government was entitled to a presumption that its evidence was authentic, and allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

Now this was in federal court but it shows that even with things like hearsay evidence and every possible advantage the government can fail to make its case against people they assert are terrorists. If we make the basic assumption that the fix isnt in this presents a major problem with even the military commissions--losing.

As it happens the government has a fear of losing in court so great that they wont even risk some people in their special commissions created for the purpose. Even when they granted themselves the biggest home court advantage they could they dont have the confidence to take some of the detainees to trial. What this means is that it is more than possible that the Obama Administration is going to throw the legal principles of our country under a bus for nothing. i mean if they are going to end up going free why not stick to our principles? That at least might be a moral victory.

This fits into my larger overall point that President Obama needs to craft a forward looking system for dealing with terror suspects that holds true to our principles of law and equity. A proposal for system that purports to be such is available here. In short Obama needs to reform this area in the same way he is looking at health care, student loans etc. This is an institutional problem and it needs an institutional and systemic solution. As it currently stands the Obama administration seems to be heading backwards in terms of reform as it relies on the flawed philosophies and justification of the Bush years. Obama needs something new. Otherwise, we are stuck with a system little changed from Bush where the only difference is that instead of holding detainees indefinitely at Gitmo we hold them indefinitely in Fort Leavenworth or Pelican Bay.

The scary truth for the Obama administration is that some of these people simply cannot face any sort of trial where the outcome is unfixed do to royal screw ups with evidence and torture.

Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

Obama cannot face the possibility of allowing people to go free. The administration views this outcome as being either too politically damaging or practically dangerous to allow. So we are left with a bunch of detainees in limbo and a search for some way to keep them in custody without trial.

My own view of how this shakes out is that the Obama admin does put all the legacy detainees tainted by torture and other such issues through a military commission show trial that is even more watered down than we currently see. After getting these convictions A new system comes into place that corrects the criticisms that are constantly leveled at the commissions. The left and civil libertarians view the entire episode as shameful and a low point on par with Korematsu. Obama blames Bush for the need to do this. As it is only the left that is really upset about this stuff Obama is not hurt politically by it and is reelected on the strength of his other domestic accomplishments. America tries to move on and pretend it didnt happen.

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For Steele: A Brief Understanding of Law

I think it might be a waste of my time to respond to chairman Steele's ridiculous assertions regarding the linkage of empathy and law. I feel like Steele's comments deserve the Billy Madison response. Despite this inclination i want to address Steele and help him understand why his comments are so divorced from reality and an understanding of how the law works.

Other than "possession is 9 tenths of the law" this is probably the most quoted passage having to due with the law,

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Now compare this quote from Holmes to the words of Chairman Steele,

STEELE: Good morning y’all, we’re back in the house. We’re talking a little bit of Constitution and a little bit Supreme Court. And a whole lot of saving America’s judicial system and saving our rights as citizens and not having empathetic judges decide cases, but rather judges who are actually understanding the rule of law and what the Constitution and those laws are all about. And how to apply the facts to the law and the law to the facts. And adjudicate my case. I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

First tip for Steele is to stop trying to talk like he is beyond the cutting edge. It doesnt work and it makes it hard to take him seriously. His major point though seems to be that in a slam dunk case where he should win the life experience or situation of the other guy will steal his win. That is absolutely not how it works and is the absolute wrong conception of what barack obama means by empathy. A better look at what Obama means by empathy is Lily Leadbetter,

For nearly 20 years, from 1979 until she retired in 1998, she worked as a supervisor at Goodyear's tire plant in Gadsden, Ala. She was an area manager, one of the few women in such a position. At first, her pay was in line with what the men in the same job made. Then it slipped. By the end of 1997, she made $3,727 a month. The lowest paid man doing that same work made $4,286 a month, and the highest paid men were getting $5,236. So she sued.

"I just could not believe that they would separate the female pay so far down the line from my male peers," she told NBC News at the time. "I was shocked when my attorneys accumulated all the information, and I saw how low it was."

Her legal argument was this: Every time the company wrote her a check, it was committing sex discrimination. But she lost. The Supreme Court, by a 5-4 vote, said she waited too long to sue. The majority said federal law requires workers to file their complaints within 180 days of an act of discrimination. In other words, the court said, that clock starts ticking when an employer decides how much to pay, not each time a paycheck is written, years later.

In her dissent, Justice Ginsburg said employers often keep salaries secret, meaning it can take years for workers to realize that discrimination was keeping their pay lower. She accused her male colleagues on the court of failing to understand how pay discrimination works. It's not like being denied a promotion, she wrote, when you know right away what happened. And, at first, women may not want to make waves if they think their pay is low, she said.

Empathy from the bench is understanding that a technical issue like the one in the leadbettter should not overcome the injustice done to her by the discrimination. The first rule of the federal rules of civil procedure is that the rules should be interpreted to secure just, speedy, and inexpensive resolutions. It is impossible to evaluate the justness of a situation if you cannot understand or automatically discount the policy arguments being made. The decisions from the Court and from appeals benches have real world impacts.

When a judge talks about "making policy" what they mean is that the result of a decision at the high levels of the justice system defines the law and how it will apply in similar situations in the future. They do this though only in murky situations without clear answersThey cannot simply issue the law by fiat.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy.
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When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle.

The incorporation of empathy into deciding murky cases with far reaching implications is hardly crazy. It is essential to accomplishing what steele says he wants, equal protection under the law. In fact, if courts act in ways that run contrary to the will or feelings of the general public, there is a way to fix this. This marvel that constrains the ability of the court to make policy is called the legislature. thats right, in most cases congress can edit or rewrite the law to preclude the reading that the judiciary attaches to it. This is exactly what congress did when they passed the Lilly Leadbetter act as the first piece of legislation this term. If you have any doubt about the need for empathy in the judiciary see this post by hilzoy,

Here's some evidence from Jeffrey Toobin's The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):

"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?

Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.

Empathy is simply understanding how things actually are in the real world. Whether this comes in the form of understanding that gay people are not straight or that women actually face discrimination in pay and that sometimes its not easy to spot or that diversity for its own sake has merit and so considering race may not be bad in all possible instances empathy is far from a bad characteristic in a jurist, it is essential. The law is not black and white michael steele. Please stop acting like it is and contributing to a misinformed discussion of the subject.

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A Liberal on the Court

Is it too much to ask that President Obama place and actual liberal on the SCOTUS? Since the end of the Warren Court the court has been shifting rightwards slowly but surely eroding protections established under Warren. The current Court has a strong rightward lean with Scalia, Thomas, Alito, Roberts and often Kennedy join for the majority, as they did in DC v Heller. In light of this the replacement for Souter is not going to be able to swing the court to the left by a significant margin. However, the value of ability to write dissents and to stand solidly in opposition to Alito et al cannot be understated. In light of this i would encourage President Obama to stand firm against the bipartisanship crowd and nominate a solid and dependable liberal to the SCOTUS.

Here is the quote from the transcript of Obama's response to how he views the selection of supreme court justices during the primaries.

Now with respect to the bench, I think you are exactly right, we have to have people with the intellectual qualifications and academic credentials to perform. But, that can’t be the only criteria. We have generally, lately, drawn only from the academic areas. And, some of our best justices have been people who know a little bit about how the world works; know what it looks like outside of a court. Because part of...especially when you get to the highest levels, the Supreme Court, and I taught constitutional law for ten years. 95% of the cases that come before the Supreme Court or the appellate courts are actually pretty easy to resolve. A lot of these cases are cases that where there’s a clear statutory, you know, there’s clear language that tells you what the law is, or there’s clear precedent that tells you what the law is, and Scalia and Ginsburg will agree on the interpretation. And, those cases usually get washed out. The cases that we pay attention to, that we care about are the 5% of the cases, or the 1% of the cases, and what makes them hard cases, is because they’re conflicting values. It’s not just that they’re, its right and wrong, its, there might be two rights or two wrongs and you’ve got to try and resolve them. And there, the question is, what’s in the persons heart and their gut, not just what’s in their head. And what I want are people on the bench, who have enough empathy enough feeling for what ordinary people are going through, that they’re not just in a bunch of abstractions up there, but they’re focused on, you know, what does this really mean. Brown vs. Board of Education is a great example, I mean, the truth is; is that the science that showed that black children going to segregated schools was bad for them, the sociology that was used was imperfect. I mean, it wasn’t really perfect science, but people on that bench, people like Earl Warren and Brennan and others, they understood you know what, what’s really happening is that this is part of a stigmatization of blacks, and so you cant pretend that there is anything like separate and equal, its inherently unequal, that’s a statement of values, and a statement of morality, and a statement of who we are and what we believe in.And, I want my judges to understand that part of the role of the court is to look out for the people who don’t have political power, the people who are on the outside, the people who aren’t represented, the people who don’t have a lot of money, who don’t have connections, that’s the role of the court. And yes, I want women on the court absolutely.

The allusion to brown is an important one. If Obama truly identifies with the way that the Warren Court decided Brown it presents an important insight into the way he understands the role of the judiciary. This response indicates a view that the court is an instrument of social justice with ability to reshape policy to protect the interests of the traditionally disadvantaged groups in society. Obama is advocating for a judicial awareness that the decisions made by the SCOTUS really impact the lives of people. By referencing Brown and the ability to pierce the evidence and facts presented in the case Obama seems to support a legal realist point of view.

Obama's discussion of empathy and understanding is actually encouraging because it takes us away from an understanding and framing that the right has successfully propagated for years, the "activist judges" meme. Activist judge is simply rightwing code for liberal. A judge who asserts the rights of the oppressed based on the principles illustrated in the constitution applied to the real world is an activist. A judge who ignores the real world effects, the practicalities, of the decisions and the concept of justice is one who "adheres to the constitution". Liberals lose the framing battle on the courts because they are afraid to stand up for their ability to interpret the constitution. They essentially cede the argument that scalian textualism is the true form of interpretation.

This is why i find it somewhat disheartening to see reports like this, Obama May Seek Out Centrist to Replace Souter on Supreme Court

Senators from both parties said the Democratic president should avoid filling the vacancy with an “ideologue.”

“I don’t like to see an ideologue of either the right or the left,” Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, said on CNN’s “State of the Union” today. “I don’t think we’re going to have one.”

Obama “probably understands he is going to have more than one appointment,” said John O. McGinnis, a conservative legal scholar at Chicago’s Northwestern Law School who served in the Republican administrations of Ronald Reagan and George H.W. Bush. “It may well be he doesn’t want to make a very divisive appointment immediately given that he is pursuing so many other matters.”
...
Choosing a relative moderate would square with Obama’s campaign promise not to seek Supreme Court “activism,” while leaving open the possibility of a bolder nomination for a future vacancy. It would also help ensure an easy Senate confirmation, burnishing Obama’s centrist credentials while he seeks support for a health-care overhaul and other priorities.

Republican Senator Richard Shelby of Alabama said on CNN today it would be “good for the country” if Obama appoints “a pragmatist, someone who is not an ideologue.”

“I think the criteria should be to follow the law, not to make the law,” said Shelby.

Do i need to say how foolish listening to Orin Hatch and Richard Shelby about SCOTUS appointments would be? The other ridiculous notion in this quote is the idea that Obama should pick a middle of the road person this time and save the possible liberal for later. Cause, like, you know he has so much on his plate and he will need the political oxygen and plenty of other Steak Sauce esque prattle. The GOP is going to try and block whoever it is that Obama nominates. They havent voted for anything he has proposed so far so why start now? Who really believes the GOP wouldnt take a watered down nomination and try and block it anyway? They have a anti-roe litmus test and i cant imagine Obama nominating someone who would want to repeal that precedent. What this article is all about is pushing against an actual liberal on the court.

As encouraging as Obama's initial statement about empathy and an understanding about the real world effects of judicial opinions his follow up in an interview last year was disappointing,

In a 2008 interview with the Detroit Free Press, Obama identified Marshall and other liberal icons of the court as "heroes of mine." But he added: "That doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

At other times, Obama suggested that he was inclined to name moderates in the mold of President Clinton's choices of Ruth Bader Ginsburg and Stephen G. Breyer -- not known as bold advocates of liberal jurisprudence in the way Scalia is viewed on conservatism.

The Court needs a champion of the rights established by the Warren Court. The center of the current court is very far to the right. If Obama nominated someone to be in that center that would only increase the erosion of rights that Obama asserts admiration for. It is interesting that most people laud the rights enshrined by the Warren Court but wont approve of the way they were arrived at. If your philosophy couldnt have decided Brown v Board against the segregationists thats a problem. The Court makes policy and there is no way around that, pretending that a moderate centrist is going to deliver on the policy Obama claims to favor isnt wise.

A young brilliant counter to Scalia and Alito is whats needed, someone who can articulate a liberal judicial philosophy. Lani Guinier explains,

Depending upon the choice President Obama makes — Justice Souter’s legacy could be the opening up of the court to a pragmatic politician who understands Justice Brennan’s “rule of five” for a majority opinion. However, President Obama’s nominee might be even more influential if she understands her power as a dissenter and uses her voice on the court to mobilize the people themselves to change the meaning of the Constitution over time.

We’ve seen this on the right, where Justice Scalia plays an active role in creating the philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own.

In his dissent, for example, in Lawrence v. Texas , which found the Texas sodomy statute unconstitutional, Justice Scalia was in conversation with a conservative constituency.

Within a few days of having published his dissent in that case, conservative activists were circulating copies of it. We have also seen it on the left, with Justice Ruth Bader Ginsburg issuing several forceful oral dissents on gender issues, including one in the pay equity case of Lilly Ledbetter.

Justice Souter joined Justice Ginsburg in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first shortchanged paycheck. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in an all-male work force are often scared to make waves.

Justice Ginsburg’s forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the court majority’s cramped decision.

With conservatives strongly positioned in the majority on the court, President Obama’s nominee will likely have to show her judicial philosophy primarily in dissent. President Obama should appoint a jurist who, like Justices Ginsburg and Scalia, speaks directly to the American people in a voice they can understand.

Obama cannot afford to play it safe on his first pick because there is no guarantee that he gets to make another pick even if Stevens is 89 years old.

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Obama Misunderstands Res Judicata

I understand these are not exactly the words of Obama but if this is his thought process hes making a serious mistake.

Obama apparently believed he could avoid what is now happening. In the weeks during which he was weighing the release of the torture memos, there was a vigorous debate within his administration. There was, according to a senior official, considerable support among Obama's advisers for the creation of a 9-11 Commission-style investigation as an alternative to releasing the Justice Department memos. But Obama quashed it.

"His concern was that would ratchet the whole thing up," the official said. "His whole thing is, I banned all this. This chapter is over. What we don't need now is to become a sort of feeding frenzy where we go back and re-litigate all this."

Obama knew he could not stop Congress from doing whatever lawmakers decided to do but he was reluctant to give a presidential imprimatur to a national commission that would keep the controversy alive for months and months and months. Obama had his own agenda and wanted to move on. Putting out the memos was the cleanest way to accomplish his goal.

The problem is that Obama's decree that we wont do this anymore is not a final judgment that brings with it res judicata. He is not the judge in a bench trial between torturer advocates and opponents. A truth commission isnt relitigation of this issue because--the issue hasnt been litigated the first time. The issue is not, did we do this or does this work but how to stop it from happening again in the future and how do we clean up America's moral perception.

Obama can ban the use of these techniques now and during his term but just as he was able to reverse Bush the next person can reverse him. By trying to consider this case closed Obama has not put in place meaningful consequences for someone who tries to repeat this in the future. Augment the inducement to comply with the substantive law mr president. Prosecute those responsible for not only authorizing but also carrying out the policy. This needs to be done because the media framing and the general discussion still doesnt carry the message that TORTURE IS A HEINOUS ACT! from the dan balz article,

There was also a practical rationale for the White House to release the memos, according to officials. Much of the information contained in them was already in the public domain, in large part through an article in the New York Review of Books. Arguments that the release of the memos would compromise national security by providing a roadmap for enemies on U.S. interrogation techniques seemed less compelling given that the information was already publicly available.

see the problem here? the justification balz advances is that the techniques can now be trained against so letting everyone know about them doesnt matter. umm we arent supposed to be using them now or ever so the fact that al-qaeda or any one else reads about them is totally irrelevant. President Obama needs to do his job and ensure that in the future people recognize this for the seriousness that it has because right now it lacks the feeling of gravitas.

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Impeachment of Bybee a Problem for Obama

First off, Jay Bybee deserves to lose his judgeship. The memo's he authored in favor of torture are reprehensible. This diary discusses the rationale for impeachment. Evicting Bybee from his cushy and prestigious job as a federal circuit court judge would be a great success for those who are anti-torture and pro-morality. However the successful impeachment of Bybee would present a political problem for President Obama.

The impeachment of Bybee based on a charge that the memo's he authored were a gross distortion of the law would affirm that laws were broken when the waterboarding and room 101 tactics were employed. The non-prosecution of those who relied on those memo's is not unexpected as the law protects those who rely on authoritative statements by the government on what the law is. That is why the OLC memo's were sought as CYA.

This is where the problem arises with going after Bybee and Yoo over the memos. What contact did they have with the administration regarding the torture policies? That remains the big and potentially explosive question. Were Bybee and Yoo supporting the administrations torture policies simply because they agreed with them or were they getting additional guidance from the white house?

It is very unlikely that there is any record of the white house simply telling these lawyers to find justifications for the policies. However that possibility is still a non-zero value. If a communication directing Bybee and co to find legal protection for torture does exists somewhere then that leads an investigation into the Bush white house. This is not at all what Obama seems to want. He has never been particularly supportive of a scouring of the Bush abuses committed in the area of civil liberties or detainee rights. Obama seems to be content with the "its all in the past" approach. If an investigation leads into the Bush white house you can bet that it will become the dominant story of Obama's presidency and overshadow the reforms that Obama wants to make.

It appears that the administration views all of the Bush abuses as a can of worms. The impeachment of Bybee is the possible beginning of a serious inquiry into the origination of the torture regime.

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Obama's Double Secret State Secrets Strategy

Everyone is probably aware by now that the government is advancing some pretty far reaching state secret claims. Everyone is probably also aware that this violates the spirit of campaign promises regarding habeas rights. I want to explore the double secret strategies that Obama may or may not be employing in order to secretly assure that Presidential power is restricted and detainees do get habeas rights even though he appears to be doing the exact opposite.

Secret Theory One--Making Congress Do It

Ok it is congress' job to define what are and are not state secrets as far as statutory direction for the courts. This theory states that by advancing theories that are so egregious in their attempts to grab power that it will force congress to act. The people will rise up and hold tea parties against Obama's behavior and force action on the hand of congress. Obama will play the villain to give the democrats in congress the victory of rolling back executive power grabbed under Bush. Obama's refusal to say whether he supports the state secrets act is simply a way to keep the topic in the headlines. By drawing additional press it increases the visibility of the issue and the chances that Congress will act on the issue.

Secret Theory Two--Making the Judiciary Do It

By advancing these claims in the judiciary Obama provides the opportunity for test cases that may establish precedent that rejects the claims that the governments lawyers are making. By doing this in the courts Obama is effectively backdooring law because congress is unreliable. If the courts reject these arguments then future presidents will have little chance of making them stick because of the doctrine of stare decisis.

The state secrets doctrine is a judicial doctrine to begin with so maybe it makes sense to have Obama set up test cases for its reformation there instead of trying to get by the republican's in congress. By playing this out in the courts Obama and the democrats avoid dealing with the consequences of limiting what is and is not secret. This potentially avoids charges that Obama and the Dems are soft on terrorists as the rabid right already hates activist courts. Who are the courts after all to say what should and should not be secret? they lack the competency to make those types of decisions. Obama is simply playing the power grabber so that the courts reject his argument...its brilliant.

Secret Theory Three--He has to do it.

Obama doesnt actually want the power. Its just the job of the lawyers to make these arguments on behalf of their clients. Its their job to advance all possible defenses to these cases instead of admitting that the government spied on these people and owes them damages. Lawyers of course dont have to believe that this is actually the law to make these arguments. There is no ethical problem or penalty for misstating or exaggerating what a case says.

whats your theory?

Seriously though if you read the brief filed by the government it makes a largely procedural and practical argument that it is simply to hard at this time to conduct the type of operations needed to determine if the people held there deserve to be held there. Essentially it stats that because there are ongoing combat operations in that theater these people should be held until such time as the war is over.

The United States and its allies have a “clear and focused goal: to disrupt, dismantle and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future.” Id. The Court’s ruling, however, likely would divert the military from this critical mission.

its not a compelling argument.

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Just Say No to Benevolent Dictators

Seeing venezuala repeal their term limits on the office of the presidency has brought to mind something about executive power in our own country. This is the "trust me" idea. The idea that as citizens what we need is to trust our presidents to use their expansive power wisely and that by simply highlighting past abuses or saying that they wont happen again. I feel that simply airing dirty laundry from the Bush administration or discovering the truth is not enough to prevent future abuses by the executive. In this light i would like to see President Obama and the Congress take more concrete steps to prevent a repeat of the Bush administration in the future and to roll back the executive branch's power.

Dave Waldmen presented a question about Obama and the use of signing statements to avoid having to enforce the executive pay measures passed in the stimulus bill.

Whatever the differences, let's be clear about what it means that Congress has passed this set of restrictions, and President Obama is signing them into law tomorrow. Any changes he'd like to see made, he ought to seek to have made legislatively. After two weeks of seeing the stimulus bill watered down and slashed in a futile attempt to "reach out" to Republicans who all eventually gave him the finger, do you think we could maybe, possibly not have the President unilaterally take an axe to a wildly popular provision added to the package by members of his own party?

I'm not a presidential adviser, of course. But I'm thinking that maybe this ought to be approached with a bit more caution, and more signals need to be sent that the President is committed to making any fixes he wants through the legislative process. Any ambiguity isn't likely to help him when it comes time to sell another $2 trillion round of TARP funding in the coming weeks. The constant worry of Obama's most critical allies on the Hill with respect to the TARP is that Congressional oversight not fall by the wayside. If the White House's opening move on oversight is to announce its intention not only to make decisions unilaterally, but to brush aside enacted statute in doing so, we're going to be in for a bumpy ride.

I view presidential signing statements as unconstitutional. To me the represent the executive making a determination about what is and is not constitutional that is reserved for the courts. The presidents job is to faithfully execute the laws not to alter clear language and modify statutes for political purposes. If Obama where to make a signing statement that established his intent not to enforce the executive pay cap that would be an unconstitutional act. He would be making law, not enforcing it. When an executive simply rewrites the laws passed by a duly elected legislature he takes on the character of a dictator.

Similarly, when the executive branch labels a topic protected by national security and orders law suits thrown out they are acting in a dictatorial manner. The executive should not be able to simply throw out law suits based on alleged national security requirements without a review by the judiciary as the legitimacy of that assertion. Congress should pass legislation to end the governments assertion of such a broad state secrets provision.

These are just two of the most obvious examples of how a president acts in an undemocratic and dictatorial manner. It is now, when we have Obama as President that we need congress to step to the plate and firmly roll back, in law, the unitary executive style expansion of power that has been happening since Reagen. Congress during the Bush years managed to let the executive branch have whatever it wanted because Bush was Keeping us safe. This exact language is the language of subjects not citizens. The President is not a paternalistic figure who takes care of all our problems, Presidents are supposed to be leaders. Leaders are not empowered to simply do whatever they think is best, especially under our constitution. Presidents, even the good ones are not all powerful.

While i believe Obama is of sound moral and ethical character we are a nation of laws and not of men. As a country we cannot simply sit back passively as our elected leaders "do whats good for us". We need laws, accountability, and checks on a leader be it Obama or any one else. I do not want a benevolent despot who leads me like a sheep where he says is best, otherwise id be a conservative. We shouldn't need to trust our leaders not to torture or spy on us. Just say no to benevolent dictators.

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AP Sued Over Copyright Infringement

In an ironic turn of events the AP is now on the receiving end of a lawsuit over copyright violations. Shepard Fairey is actually suing the AP over the iconic HOPE poster. Fairey is asking the court for a declaratory judgement as to the proper copyright status of the work, specifically he is asking the judge to declare that his work is fully protected under the fair-use exception.

Before getting into the prospects for Fairey in the suit i should also note that there is actually a question over whether the AP actually owns the photo to give it standing in any lawsuit it might choose to bring in the future.

Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

It really would be amazing to see the AP sued and held liable for attempting to claim ownership of the photo. In addition there are apparently possible criminal penalties for someone who falsely asserts a copyright ownership. Someone in the AP could theoretically go to jail if they are deemed to have fraudulently asserted claim to the copyright. This will certainly merit watching, now on to fair use....

The idea that Fairey would have a fair use defense has been kicked around the blogs a bit. That link is to an excellent discussion of the prospect at concurring opinions. The comment section is worth a definite read. Here is the argument for fair use from Daniel J. Solove professor of law at the George Washington University Law School.

Fairey's Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.

To the extent that some elements of the photo are duplicated in the poster, it isn't clear that Obama's facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?

Moreover, the poster might constitute fair use. The fair use factors include:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market

The poster isn't a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.

Without researching all the case law to see how heavily each factor is weighted and how each is measured its hard to straight up say that it is fair use. If i had to choose though i agree with Prof. Solve that the poster is fair use though i would like to see him elaborate on the distinction he makes in the market for the photo and the poster. Both seem to be marketed to the general public and fans of obama.

Most of the law profs who commented at Concurring Opinions felt that the work was transformative enough that it would succeed under a fair use defense so there is a good chance that Fairey actually wins his declaratory judgment. It would be good to see the AP lose a copyright claim.

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Holder and Obama State Secrets Doctrine Continue

Something that has made waves among the legal and civil libertarian blogosphere is the Obama administrations continuation of the State Secrets Doctrine. The doctrine was created as a means to shield things the government did not want the public from plaintiffs in lawsuits. As with everything else the Bush Administration took this powerful secrecy tool to the next level. There was a great hope that the Obama administration would curtail the practice. Things like this seemed to feed the hope,

"The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that is being invoked only in legally appropriate situations," Justice Department spokesman Matt Miller said yesterday.

"It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller said.

Yay right? Well not so much.

"In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration's "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantanamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

"Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

"No, your honor," Mr. Letter replied.

Judge Schroeder asked, "The change in administration has no bearing?"

Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said."

What are we to make of this? Holder promised a review and apparently such a review was conducted here and it produced the same result as under Bush. Clearly then this must be a truly clear cut case for total secrecy. Again, not so much.

"A British 'resident' held at Guantanamo Bay was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon, it was revealed last night.

Binyam Mohamed, a former UK asylum seeker, admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.

It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist."

That this case was reviewed and the government felt compelled to maintain the same arguments is a horrifying indicator. The general problem is that there is seemingly an underlying need for a variation of the doctrine. As it was originally envisioned it was meant to keep select documents out of evidence because to reveal them would severely harm national security. While in theory this is a well founded doctrine in practice it has always been abused. The case that created it was in fact a government cover up. Glenn Greenwald has detailed the congressional efforts at reform here.

If we are going to have a doctrine of this nature it needs to be codified in law with clear intent and no wiggle room for the president. Some pieces of evidence maybe but entire cases? no. Even the government needs to be accountable to its people and embarrassment is no reason to deny justice.

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War on Terror Over?

I have been extremely busy and a little sick so my blogging has been very irregular. However, i have seen something that deserves a post. The issue is whether or not the "War on Terror" is over. I am prompted to explore this based on several pieces, one in the WaPo, one by Yglesias, and one in TAP. These pieces have made several important points about not only an end to the phrase, "War on Terror", but the mindset behind it. If Obama is truly ready to end the mentality it can only be considered a dream come true for non neo-cons everywhere.

The first piece on the demise of the "War on Terror" is in the WaPo. It presents a story where Obama is the man undoing the WoT at the stroke of the pen.

Key components of the secret structure developed under Bush are being swept away: The military's Guantanamo Bay, Cuba, facility, where the rights of habeas corpus and due process had been denied detainees, will close, and the CIA is now prohibited from maintaining its own overseas prisons. And in a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after Sept. 11, 2001.

I have issues with the post piece. The first is that they present the WoT era as solely the provenience of George W. Bush. The unifying theme of the piece is that this was Bush's war. While it is true that Bush was definetly a leading figure and fully culpable for the abuses that embodied the WoT the article misrepresents exactly how the WoT played out. The Post conveniently leaves out the idea that people were opposed the WoT. Instead it sounds as if the WoT was afad Bush sold the people on that the eventually tired of. For example,

It was a swift and sudden end to an era that was slowly drawing to a close anyway, as public sentiment grew against perceived abuses of government power. The feisty debate over the tactics employed against al-Qaeda began more than six years ago as whispers among confidants with access to the nation's most tightly held secrets. At the time, there was consensus in Congress and among the public that the United States would be attacked again and that government should do what was necessary to thwart the threat
...
The published reports in The Post and elsewhere earned the news media sharp recriminations from the administration, the Republican leadership in Congress and the public. Government leak investigations were launched. Bush administration officials argued that such methods and operations were necessary to effectively thwart terrorism, noting to this day that there have been no major attacks since 2001.

If there were dissenters back then, they were largely silent.

While the moves made by Obama do end many of the Bush tactics for battling terrorists the post piece fails to detail any long term actions taken to ensure it never happens again. By presenting the death of WoT as something organic, something that would have died even without Obama, there seems to be no need to make long term changes. This is wrong. The key is to augment the inducement to comply with substantive law. This means Congress needs to act and forbid these practices.

If we take the Post version of the WoT death we will not do enough to prevent future abuses. It was not Bush alone and to portray it that way is dishonest. While the Post counts the WoT as dead Matt Yglesias is more cautious, here and here.

One thing that a number of people have noticed during the transition and the first few days of the Obama administration is that Obama and his appointees don’t, generally speaking, use the phrase “war on terror.” But when pressed, they don’t disavow the term either. They’ve just kind of backed away from it.

and

Back during the campaign, meanwhile, Obama said he didn't just want to end the war in Iraq, he wanted to "end the mindset that got us into the war in the first place." The idea of a hazily defined "war on terror" would certainly seem to qualify as an important part of that mindset. But thus far, Obama and his team have been mighty ambiguous on the issue. Obama isn't prone to using the phrase himself, but back during the primaries, all the Democratic contenders were given a specific opportunity to disavow it, and only John Edwards and Dennis Kucinich stepped up to the plate. During confirmation hearings neither Attorney - General Eric Holder nor Secretary of State Hillary Clinton nor any of the new Pentagon sub - Cabinet officials spoke of a "war on terror." But on the day of his rollout as Obama's choice to run the CIA, Leon Panetta committed himself "to consulting closely with my former colleagues in the Congress to form the kind of partnership we need if we're to win the war on terror."

Obama himself split the difference in his inaugural address, eschewing the WOT terminology, but arguing that "our nation is at war against a far-reaching network of violence and hatred."

Yglesias TAP piece does a much better job at addressing the real issues with the WoT. His piece looks at the strategic flaws and failures of the WoT. This contrasts with the Post Piece that looks simply at the demise of the tactics. A tactical change does not herald an end to WoT because that leaves the conceptual framework in tact. Yglesias succinctly illustrates why this should not be labeled a war,

Simply put, terrorists are not warriors. The German soldiers my grandfather fought during World War II killed people, but they weren't murderers; they were soldiers. When captured, they became prisoners of war, not criminals. Some on the Nazi side were, of course, criminals -- war criminals -- and were charged as such. But the typical German soldier was a soldier, entitled to return to his home and family unmolested if he survived the war. Men who blow up nightclubs and train stations and demolish office buildings, by contrast, are murderers. We neither should nor will treat them as soldiers. But insofar as that's the case, we're not at "war" with them any more than we're actually "at war" with the guy who used to sell me pot.

Just as we don't afford terrorists the wartime exemption from prosecution, however, we must observe restraint in going after terrorists. If the FBI has reason to believe a terrorist is holed up in an apartment somewhere in Philadelphia, we don't bomb the building -- we arrest the terrorist. The same thing is generally true abroad -- we need to work with friendly law enforcement to unravel plots against targets in Europe and Canada and other Western nations. But we don't fire mortars or drop bombs in friendly cities -- we seek cooperation with local governments.

Its still too early to tell if the WoT is truly dead as an idea and a mindset. Obama has only been in office for a couple days and the people who supported the policies are not totally gone. The key will be to convert the image of the fight against these subnational groups as a law enforcement issue. Obama has yet to fully transform his rhetoric to reflect this. When he says "we will defeat you" it is not the language of law enforcement.

Instead i would like to see the language and the framing shift to arrest and trial in civilian courts. This is the other key point, the trial of those arrested in civilian, not military, courtrooms. Trials in military courts lend weight to the idea that this is a military action. War criminals are tried in front of the military, criminals are in tried in front of civilians.

Most of what i have said is not particularly new. However it is important to keep the pressure on Obama and on those who backed the WoT in the past. If the coverage from the Post is typical of the coverage on the WoT then Obama is going to get lots of well deserved credit for his initial actions. Without additional pressure Obama will take this credit and move on to the myriad other challenges that we face of a country. By definition a stroke of the pen cannot end the WoT. the WoT is a mind set, a strategy and there is much more to work on before we can truly consider the WoT dead.

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Is there a price for obstructionism?

Steve Benen has a post up regarding the failure of the GOP to consider moderating after its heavy rejection at the ballot box this year. The post progresses as you might expect with a quote from a moderate followed by the absolute rejection of that quote my the rest of the GOP. What is interesting though is the update,

Post Script: The Times piece added, "It remains to be seen how aggressively Republicans will try to wield the filibuster threat. They have recently signaled they will fight Obama's economic recovery plan if it moves too quickly. But there are political risks if the GOP is seen as obstructionist at a time when voters are clamoring for economic relief and change."

Maybe, but that risk existed in the last Congress and Republicans didn't care. And if the GOP leadership is convinced that it has to be even more conservative to win in the future, their embrace of obstructionism may be unaffected.

To say the Republicans did not care is an understatement. Here is a chart produced by Nate Silver at 538 to show the progression of the filibuster over time.




As you can see the filibuster and the cloture vote have exploded in the most recent congress. The GOP was also decimated in the most recent election. The problem is that they did not lose this election in any part because of the obstructionist tendencies they displayed. The framing of the filibuster is such that the media reports it as a failure of the Democrats to get enough votes to pass a bill. This has essentially raised the threshold for passing legislation from 51 votes to 60 votes. Yglesias explained the dynamic perfectly last year,

It seems, though, that the GOP has decided that if they use filibusters to obstruct congressional action that the press will keep reporting this in a "congress fails to do X" kind of way rather than a "GOP obstructionism" kind of way, which makes filibusters a win-win for Republicans.

The evidence points to the idea that there is in fact very little to no price being paid by the GOP for obstructing the Democratic senate. The biggest threat that the obstructionist Senators face is that they fail in their reelection bids but the Dem gains were so great in the last election it is hard to imagine that the GOP continues to lose more senate seats next time around based on obstructionism. The most obstructionist senators are coming from the most conservative states so the odds of them getting tossed out is not very high.

The conservatives are going to continue on the obstructionist path until something changes to stop them. The options for that are basically two fold. the first is to simply get rid of the filibuster all together. The argument for this is that the passing of legislation already has enough road blocks to keep the bad legislation out. I am dubious about this especially because of the recent passage of the FISA bill but its not like the filibuster was effective in stopping that. it seems like it is only employed to stop things progressives might actually like.

The second option is to require that the GOP actually filibuster. Currently they just announce that they are filibustering something and Reid treats it as a real filibuster. Instead we might like to see the GOP up there reading the phonebook for 48 hours and reenacting Mr. Smith Goes to Washington. That would change the media reporting to the actual filibuster instead of the failed vote for cloture. As added bonus it would be entertaining as hell.

Of course now that we have a Democratic president the Republicans might be a little more wary about blocking popular legislation. As long as the focus is placed on the failure of the dems and Obama to do anything about our situation the Republicans can continue to block to their hearts desire without any price.

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"Barack the Magic Negro"

I am not sure how many people have seen the movie Holiday Inn with Bing Crosby. It is famous for the song White Christmas. It also famous for a different song, Abraham. to give you an idea of this song and scene here is a review of the dvd,

Still, there are a few duds, the most notorious being a shockingly dated minstrel-show ode to Abraham Lincoln. As Crosby and Reynolds sing "Abraham" in blackface, Holiday Inn's African-American mammy (Louise Beavers) serenades her two small children in the kitchen: "When black folks lived in slavery / Who was it set the darkie free? / Abraham! Abraham!" The scene is a jaw-dropper, alright, but at least it's memorable.

It was that scene which put in a mind to discuss the recent racial flap. Racial discussions are always difficult because of the heated passions they arouse. The controversy surrounding the offensive song "Barack, the Magic Negro" has generated similar passions on both sides of the fight. "Magic Negro" is really a cringe worthy phrase on par with the Abraham number from Holiday Inn. Everyone is well aware that it is not ok to go around referring to african americans as "negros" just as its not ok to go around performing in black face for minstrel shows.. Those who do are trying to make a point that our society has become to "politically correct". This is not one of those phrases that straddles the border between ok and not ok. Negro is as dated as black face.

"Magic Negro" might as well be replaced by what it really means, Uncle Tom. In the outrage over the distribution of the song many people have not looked at exactly where the phrase comes from. It is a cinematic terms for a kind, older, non-sexualized black man who plays a mentor role to a white protagonist. Think Will Smith's character in "The Legend of Bagger Vance". There is no legitimate defense of the phrase applied to barack obama. To label him thusly as the right does is deeply offensive to blacks and whites a like.

Would these same people be happy to have a song written about their wives calling them a "happy whore"? no. That would be completely out of bounds and offensive. Each of the labels Uncle Tom, Magic Negro, Happy Whore are all offensive to those who are characterized as such and should not be allowed. Its not funny. That RNC chair candidate Chip Saltsman thought that not only was it funny but that it was a great Christmas gift says a lot about where the Republican Party is.

"I think most people recognize political satire when they see it," Tennessee Republican Chip Saltsman told CNN. "I think RNC members understand that."

The republican party is facing the challenge of covering up their lily white party. As the NYT reported when discussing this story,

The dispute illustrates a larger Republican challenge in the months ahead: how to oppose the first black president without seeming antiblack. There are no black Republicans in Congress, and a party spokesman could name only 2 blacks among the 168 members of the national committee. Katon Dawson, the chairman of the South Carolina Republican Party, resigned from an all-white country club in preparing for his campaign to be party chairman.

There is a deeply unsettling racist tinge to the republican party right now. Im not sure if this is a symptom or a cause of their relegation to a southern party but if they hope to grow back to a national party they need to rethink their racial attitude. Otherwise they risk looking just as dated as the black face minstrel show from Holiday Inn.

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cabinet diversity

There has been significant uproar over the "diversity" of Obama's cabinet picks. There are those complaining about a lack of southerners or light skinned african americans or any number of other things. My outlook on this is that there are too many different regions and skin colors and backgrounds for Obama to account for them all. We want him to be selecting for excellence and competence. We dont really want him to look for the best asian person or african american for a job we want him to look for the best person possible for the job.

I really doubt obama is someone who is going to be selecting a lily white cabinet or discriminating against anyone who is lgbt. There is plenty of diversity as far as the view points and politics of the cabinet posts go. From Republicans to progressives Obama is filling out every view in between. There is no point in asking for regional diversity or any of the other things people are clamoring for.

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Darfur Genocide Ongoing Test of ICC and US

The two most empty words in the english language have become, "never again". Our maybe that's limited simply to dealing with Germany? It is obviously not a universal maxim as genocide and a myriad number of other human rights crimes are committed daily in Darfur. As awful and tragic as the situation is signs of the beginning of progress towards taking action have appeared. Earlier this year International Criminal Court prosecutor Luis Moreno-Ocampo sought a warrant for the arrest of Sitting Sudanese President Omar al-Beshir. The ruling on that request will come down soon and if it comes back in favor of arresting al-Bashir look for all hell to break loose.
The evidence indicating that al-Bashir has been active in soliciting, conspiring, and complicit in, crimes of genocide in Darfur is strong. For one example,

“government bombers, helicopter gunships, tanks and artillery were used against unarmed civilians to clear a 100-kilometer area around the oils fields. Witnesses reported that over 1,000 government soldiers swept through Ruweng county, wreaking human and material destruction, including destroying 17 churches.”

He is not a good guy. However as with anything on the international stage it gets complicated.

Quite apart from the fact that Sudan is not a signatory to the Rome Statute, indicting Al Bashir will make it even more difficult to revive the stalled peace process in Darfur. It is feared that a sizable segment of the Sudanese population that supports Al Bashir will become even more antagonistic towards the targeted ethnic groups in Darfur. The chasm that separates them from the rest of the population in Darfur and the Sudan will become wider.

The rest of the article by Dr. Chandra Muzaffar, President of the International Movement for a Just World (JUST) and Professor of Global Studies, Universiti Sains Malaysia goes on to discuss the issues involving china and one of the root causes of the conflict, lack of water. In fact supplying water to the whole country would go a long way to resolving the conflict. However, simply ending the conflict is not enough to truly count justice served. Those who commit genocide should not escape unpunished.

The International Criminal Court is trying to become the body that assures justice is done in this case. They face stiff resistance at the idea of indicting al-Bashir based on the possible repercussions to the peace process and a possible increase in the genocide. This has created a possible crisis for the court because it is forbidden for signatories to the Rome Statute to provide safe havens for those under arrest warrants and wanted by ICC. UN members also have a duty to carry out the arrest since it is the UNSC that authorized the ICC to handle the case.

The al-Bahsir case is a major test for the credibility of the ICC because of the fact that al-Bashir is a sitting head of state and that Sudan has not signed the Rome Statute. That Sudan is not a party to the statute has raised a question about the legitimacy of indicting him based on a treaty he is not a party to. This will be a test of whether the court does in fact have universal territorial jurisdiction or whether they have jurisdiction limited to those of the signatory states. The answer turns on the reaction of the international community, where the reaction of the United States will be important. If the international community applies sanctions to sudan based on the indictment of al-Bashir or takes other steps it will lend great weight to the prestige and authority of the court in dealing with war crimes and crimes against humanity.

The ICC is an independent court that operates without any threat of security council veto. This is a primary reason the United States opted not to become a signatory. The loss of sovereignty was not acceptable. It also reveals why the outcome has such major implications for the United States. If the court truly has universal territorial jurisdiction it could conceivably indict a sitting US president regardless of whether the US is a signatory. So the US reaction to a possible warrant will come under strict scrutiny. President Obama will have a large role in deciding what path the international community takes in dealing with sudan and darfur.

The drama around the ICC and Darfur and the US is made even greater because Obama has been a leading American political figure in dealing with Darfur. He has been very outspoken on the issue and his voting record was graded A+ by the group DarfurScores.org. He was asked about how the US should deal with the crisis in Darfur in the second presidential debate where he advocated providing logistical support and air power in the form of a no fly zone. He has not advocated putting US boots on the ground. In conjunction with these military measures he has also advocated a position that may become a reality if the the warrant for al-Bashir stands, sanctions. First in 2004 and then again in 2007 obama voiced the opinion that,

"First, the UN Security Council should impose tough sanctions on the Khartoum government immediately. These sanctions should freeze the assets of the Sudanese government, its leaders and business affiliates; outlaw arms sales and transfers to Sudan; and prohibit the purchase of Sudanese oil. The United States must make this a high priority in our relations with other governments on the Security Council."

It is hard to tell if Obama would back off his call for sanctions if they were predicated on the issuance of an arrest warrant for al-Bashir. That condition may materially change the situation because of the implications vis-a-vis the ICC. Not to mention the balancing act that would be needed because of China's interest in the situation.

China was another country who did not sign onto the Rome Statute and they have a vested interest in sudan. The interest comes in the form of oil and arms. They arent too keen on the arrest of al-Bashir,

This morning China – Sudan's biggest arms supplier and a leading investor in the country – said it had "grave concerns and misgivings" over the ICC's decision.

"The ICC's actions must be beneficial to the stability of the Darfur region and the appropriate settlement of the issue, not the contrary," a spokesman for the foreign ministry in Beijing, Liu Jianchao, told reporters.

When asked whether China would use its position as a veto-wielding UN security council member to obstruct the court's actions against Bashir, the spokesman declined to rule this out, saying: "China will continue consultation with other members of the UN security council but, as for the outcome, that I don't know."

As i mentioned China alone will not be able to veto the actions of the ICC. What needs to happen is a security council resolution that utilizes article 16 of the Rome Statutes,

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

This means that any member with veto power could kill an attempt to defer the prosecution. President Bush is actually on record that he will veto an attempt to defer. Obama is not yet on record. In all likely hood he would not have to make the call because France has stated they would veto any such deferral.

Something needs to be done about the situation in Darfur. The ICC is attempting to address the situation and increase its authority and prestige. In doing this they have put the international community, especially the US and President Obama to the test. If the court fails in its bid to try al-Bahsir its reputation and power will take a significant blow. If it succeeds it will be a momentous moment in international law and human rights. The cost of strengthening the ICC might very well be paid by the people it is tasked with protecting, the people of Darfur. We still have little idea how China will respond to the threats on their interests. A very complicated international situation that i'm glad George W. Bush wont be deciding.

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