New US commander in Afghanistan assembles team of assassins
By Bill Van Auken
Confirmed Wednesday as President Barack Obama’s new commander for the widening war in Afghanistan and Pakistan, General Stanley McChrystal has been given extraordinary powers to assemble his own staff.
According to press reports published Thursday, in forming a permanent war council-dubbed the Afghanistan-Pakistan Coordination Cell-McChrystal is drawing heavily from a super-secret assassination squad that he commanded under the Bush administration.
That unit, the Joint Special Operations Command (JSOC), was formed in December 1980 in the wake of the military’s abortive operation to free US hostages in Iran. Comprised of the Army’s Delta Force and Navy SEALs, the command directs Special Mission Units that carry out classified operations, often in collaboration with CIA squads.
Commanded by McChrystal between 2003 and 2008, JSOC has been linked to assassinations in over a dozen countries as well as abduction and torture. Under the Bush administration, it was reportedly used to carry out covert operations inside Iran, which included the abduction and assassination of officials suspected of aiding Iraqi militia groups.
Earlier this year, veteran investigative journalist Seymour Hersh, who is writing a book on the subject, termed the command “an executive assassination wing.” He said that it was tasked with “going into countries...finding people on a list and executing them and leaving.” Hersh added that, under the Bush administration, the unit reported to Vice President Dick Cheney’s office.
According to the New York Times, McChrystal “has been given carte blanche to handpick a dream team of subordinates, including many Special Operations veterans.” The newspaper attributed the “extraordinary leeway” granted to the general to the Obama administration’s concern over the war, which over the past year has registered the highest levels of violence since the US invasion of the country in October 2001 and has seen the Taliban and other insurgent elements gain control over much of the country.
Citing Pentagon figures, McClatchy News reported, “The first five months of this year have seen a 59 percent increase in insurgent attacks in Afghanistan, a 62 percent increase in coalition deaths and a 64 percent increase in the use of improvised explosives compared to the same period last year.”
Last month, Defense Secretary Robert Gates announced the sudden ouster of Gen. David McKiernan and his replacement by McChrystal, a move that reflected increasing desperation in Washington. The shakeup followed the findings of a Pentagon task force headed by McChrystal in May that reported in relation to Afghanistan that the “security situation in key areas is poor, stalemated or deteriorating.”
Tapped to serve as McChrystal’s deputy and assigned to oversee day-to-day operations in Afghanistan is Lt. Gen. David Rodriguez, the former commander of the 82nd Airborne Division, who was chosen last year by Defense Secretary Gates as his personal military assistant. Rodriguez is reportedly a longtime friend and protégé of McChrystal.
McChrystal has selected Maj. Gen. Michael T. Flynn as his intelligence advisor for Afghanistan, the Times reported. Flynn, who is currently director of intelligence for the Joint Chiefs of Staff in Washington, had previously served as McChrystal’s intelligence chief in the shadowy operations of JSOC.
Chosen as commander of the Afghanistan-Pakistan Coordination Cell is the longtime special operations officer Gen. Scott Miller, who as a captain commanded Delta Force troops in the US military’s “Blackhawk Down” debacle in Mogadishu, Somalia.
According to the Wall Street Journal, the so-called coordination cell is “modeled on a system Gen. McChrystal put in place in Iraq, when he commanded the Navy Seals and other Special Operations personnel.”
The units that he commanded in Iraq are reported to have carried out an assassination program in that country aimed at eliminating suspected leaders of Iraqi insurgent groups hostile to the US occupation. Personnel under his command also ran a detention and interrogation center near the Baghdad airport known as Camp Nama, where prisoners were subjected to systematic abuse amounting to torture. The motto of the unit running the camp was “No Blood, No Foul,” meaning that any form of abuse that did not draw blood was acceptable and would not result in investigations or prosecution. Soldiers assigned to the facility have reported that McChrystal was a regular visitor.
Given this background, it is noteworthy that the Democratic-led Senate Armed Services Committee subjected McChrystal to no serious or sustained questioning during his confirmation hearing last week. The committee’s chairman, Senator Carl Levin of Michigan, disposed of the torture issue at the outset by helping McChrystal to lay the blame on then-Defense Secretary Donald Rumsfeld and on orders from Washington.
The right-wing editorial page of the Wall Street Journal gloated over the Democrats’ failure to make an issue out of torture, writing on June 4 that it assumed this was the case “because General McChrystal happens to have been nominated by President Obama, not President Bush.”
In the end, the only obstacle placed in the way of McChrystal’s nomination was general procedural foot-dragging by the Republicans.
To break the logjam, Senate Majority Leader Harry Reid went to the Senate floor Wednesday and made a dramatic announcement that he had received a telephone call from Adm. Mike Mullen. The Joint Chiefs of Staff chairman had told him, Reid said, that McChrystal had to fly to Afghanistan that very night and was “literally waiting by an airplane,” because there was no commander on the ground in Afghanistan.
“Let’s get the man approved tonight so he can go,” Reid said. Senate Republicans responded by moving to confirm McChrystal and two other military nominees.
Media coverage of McChrystal’s confirmation and the changes in war strategy surrounding the creation of the Afghanistan-Pakistan Coordination Cell has centered on innocuous suggestions that the planned rotation of this core group of 400 between the war in Afghanistan and Afghanistan-related planning in Washington would allow these personnel to “accumulate expertise.”
McChrystal’s military career and those of the chief officers he is selecting as his aides, however, suggest that what is being prepared is a dramatic escalation of the killing in Afghanistan, through the utilization of the type of methods employed during Operation Phoenix in Vietnam or the death squad killings during the US intervention in El Salvador.
Speaking to reporters during a flight to a NATO meeting in Brussels, Defense Secretary Gates reiterated the repeated warnings from senior military officials that, as the US continues to build up its forces in Afghanistan to a target of nearly 70,000 troops by the end of the year, the bloodshed will grow accordingly.
“We've been very upfront about the fact that as we send in more troops, and go into areas that have not had an Afghan government or ISAF International Security Assistance Force presence yet, that there will be more combat and the result of that will be more casualties,” Gates said.
In its escalation of the US war in Afghanistan, and its increasing extension across the border into Pakistan, the Obama administration has chosen as its senior commander an officer who is among those most deeply implicated in the criminal operations carried out under Bush and Cheney. This appointment, and its confirmation by the Democratic-controlled Senate, is a clear warning that the ruling establishment in Washington is pursuing a consensus policy that will involve even greater war crimes against the Afghan people, as Washington continues its attempt to assert hegemony in Central Asia by military means.
Original article posted here.
Showing posts with label Rule of law. Show all posts
Showing posts with label Rule of law. Show all posts
Friday, June 12, 2009
Obama to use all means in his power to stop torture photos from being released and gives $100 Billion to IMF
Abuse Photos Part of Agreement on Military Spending
By CARL HULSE and DAVID M. HERSZENHORN
WASHINGTON — Congressional negotiators reached tentative agreement on Thursday on a $105.9 billion spending measure that would provide money for military operations in Iraq and Afghanistan through September but would drop a ban on the release of photographs showing abuse of foreign prisoners held by United States forces.
The deal was concluded after Rahm Emanuel, the White House chief of staff, went to the Capitol to assure Senate Democrats that President Obama would use all administrative and legal means to prevent the photos’ release. At the same time, a federal court issued a ruling effectively ensuring that the photos would not be released for months, if ever.
Mr. Obama followed up with a letter, promising to work with Congress if legislation was necessary to keep the photos from being publicized but urging lawmakers not to let the dispute interfere with freeing up the money for the armed forces.
“Given the singular importance of providing funding for our troops, it is essential that Congress pass the supplemental appropriations bill,” Mr. Obama wrote in the letter, which was read publicly at the negotiating session by Senator Daniel K. Inouye, Democrat of Hawaii and the Appropriations Committee chairman.
The photo restriction, approved by the Senate, was viewed by some Democratic House members as an end run around federal freedom of information laws. It was dropped to appease Democrats already uneasy about approving nearly $80 billion for combat and more money for aid to Afghanistan and Pakistan.
Democrats said they could not secure enough votes to pass the bill if the photo ban were included. But Republicans threatened to try to block the measure if the ban were cut out, saying the photos could incite terrorists and endanger Americans overseas.
“What good are we to our soldiers if we can’t protect them in a time like this?” asked Senator Lindsey Graham, Republican of South Carolina. “Every photo is a bullet for our enemy.”
He and his allies, including Senator Joseph I. Lieberman, independent of Connecticut, said Mr. Obama should take executive action to block the release of the photos by ordering them classified.
The administration’s cause was bolstered when a federal appeals court in New York announced last Thursday that it had granted a request by the Obama administration and recalled its April 27 order to release the photographs, permitting the administration to take the case to the Supreme Court.
In effect, the decision by a three-judge panel of the United States Court of Appeals for the Second Circuit means it will be months before there is any chance that the Defense Department could be ordered to release the photographs.
Amrit Singh, a lawyer for the American Civil Liberties Union, which is seeking the release of the photographs as part of a Freedom of Information Act lawsuit, said she was disappointed by the court’s ruling. “It will only serve to delay further the release of these photographs, which are critical for informing the ongoing public debate about the treatment of prisoners,” she said.
Ms. Singh said the photos portrayed abuse in Afghanistan and Iraq in places other than Abu Ghraib prison, the Iraq jail made infamous in 2004 by photographs of abuse there, and would therefore show that abuse was “not aberrational but systemic.”
The photo issue is just one of several that are likely to generate opposition to the bill, which would also set aside $7.7 billion to prepare for a flu pandemic, provide $1 billion to encourage consumers to trade in older cars for more fuel-efficient models and allow detainees at the Guantánamo Bay, Cuba, center to be brought to the United States for trial.
The measure also clears the way for a $100 billion line of credit for the International Monetary Fund, which was the initial source of trouble for the spending bill. Republicans strongly supported the spending legislation when it was considered this year, but have threatened to withhold their support over the foreign aid, saying some of the money could go to unfriendly governments.
With Republicans abandoning the measure, Democrats need as many votes as they can win over and the ban on releasing the photos emerged as a major obstacle. In the meeting of House and Senate negotiators late Thursday afternoon, efforts to reinstate the ban were beaten back.
Some lawmakers also questioned including $1 billion to encourage owners of older cars to trade them in for more fuel-efficient models. That program, known as Cash for Clunkers, is nominally aimed at helping the environment and reducing carbon emissions, but many lawmakers who pushed for it were primarily interested in lifting vehicle sales to prop up the struggling auto industry.
The provision had not originally been included by either the House or Senate. And critics, mainly Republicans but also some Democrats, charged that it was a brazen giveaway of tax dollars to bankrupt auto companies that had already received billions in federal bailout assistance. But an effort to eliminate the money was defeated.
The bill also includes $8 million to pay for a new commission to examine the causes of the financial and economic crisis.
Scott Shane contributed reporting.
Original article posted here.
By CARL HULSE and DAVID M. HERSZENHORN
WASHINGTON — Congressional negotiators reached tentative agreement on Thursday on a $105.9 billion spending measure that would provide money for military operations in Iraq and Afghanistan through September but would drop a ban on the release of photographs showing abuse of foreign prisoners held by United States forces.
The deal was concluded after Rahm Emanuel, the White House chief of staff, went to the Capitol to assure Senate Democrats that President Obama would use all administrative and legal means to prevent the photos’ release. At the same time, a federal court issued a ruling effectively ensuring that the photos would not be released for months, if ever.
Mr. Obama followed up with a letter, promising to work with Congress if legislation was necessary to keep the photos from being publicized but urging lawmakers not to let the dispute interfere with freeing up the money for the armed forces.
“Given the singular importance of providing funding for our troops, it is essential that Congress pass the supplemental appropriations bill,” Mr. Obama wrote in the letter, which was read publicly at the negotiating session by Senator Daniel K. Inouye, Democrat of Hawaii and the Appropriations Committee chairman.
The photo restriction, approved by the Senate, was viewed by some Democratic House members as an end run around federal freedom of information laws. It was dropped to appease Democrats already uneasy about approving nearly $80 billion for combat and more money for aid to Afghanistan and Pakistan.
Democrats said they could not secure enough votes to pass the bill if the photo ban were included. But Republicans threatened to try to block the measure if the ban were cut out, saying the photos could incite terrorists and endanger Americans overseas.
“What good are we to our soldiers if we can’t protect them in a time like this?” asked Senator Lindsey Graham, Republican of South Carolina. “Every photo is a bullet for our enemy.”
He and his allies, including Senator Joseph I. Lieberman, independent of Connecticut, said Mr. Obama should take executive action to block the release of the photos by ordering them classified.
The administration’s cause was bolstered when a federal appeals court in New York announced last Thursday that it had granted a request by the Obama administration and recalled its April 27 order to release the photographs, permitting the administration to take the case to the Supreme Court.
In effect, the decision by a three-judge panel of the United States Court of Appeals for the Second Circuit means it will be months before there is any chance that the Defense Department could be ordered to release the photographs.
Amrit Singh, a lawyer for the American Civil Liberties Union, which is seeking the release of the photographs as part of a Freedom of Information Act lawsuit, said she was disappointed by the court’s ruling. “It will only serve to delay further the release of these photographs, which are critical for informing the ongoing public debate about the treatment of prisoners,” she said.
Ms. Singh said the photos portrayed abuse in Afghanistan and Iraq in places other than Abu Ghraib prison, the Iraq jail made infamous in 2004 by photographs of abuse there, and would therefore show that abuse was “not aberrational but systemic.”
The photo issue is just one of several that are likely to generate opposition to the bill, which would also set aside $7.7 billion to prepare for a flu pandemic, provide $1 billion to encourage consumers to trade in older cars for more fuel-efficient models and allow detainees at the Guantánamo Bay, Cuba, center to be brought to the United States for trial.
The measure also clears the way for a $100 billion line of credit for the International Monetary Fund, which was the initial source of trouble for the spending bill. Republicans strongly supported the spending legislation when it was considered this year, but have threatened to withhold their support over the foreign aid, saying some of the money could go to unfriendly governments.
With Republicans abandoning the measure, Democrats need as many votes as they can win over and the ban on releasing the photos emerged as a major obstacle. In the meeting of House and Senate negotiators late Thursday afternoon, efforts to reinstate the ban were beaten back.
Some lawmakers also questioned including $1 billion to encourage owners of older cars to trade them in for more fuel-efficient models. That program, known as Cash for Clunkers, is nominally aimed at helping the environment and reducing carbon emissions, but many lawmakers who pushed for it were primarily interested in lifting vehicle sales to prop up the struggling auto industry.
The provision had not originally been included by either the House or Senate. And critics, mainly Republicans but also some Democrats, charged that it was a brazen giveaway of tax dollars to bankrupt auto companies that had already received billions in federal bailout assistance. But an effort to eliminate the money was defeated.
The bill also includes $8 million to pay for a new commission to examine the causes of the financial and economic crisis.
Scott Shane contributed reporting.
Original article posted here.
Saturday, June 06, 2009
Maybe some good news regarding Democrats standing up against secrecy (but is still ongoing and we must wait and see)
Glenn Greenwald
Original article posted here.
Are House Democrats about to block Obama's new secrecy law?
(updated below - Update II)
Earlier this week, I noted that the Senate had passed -- with Obama's support -- a pernicious amendment to the spending supplemental bill, jointly sponsored by Sens. Lindsey Graham and Joe Lieberman, that empowers Obama and the Pentagon, at their sole discretion, to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." The amendment has no purpose other than to expressly allow the President to conceal evidence of war crimes (torture) and to block the Supreme Court from ruling (as two federal courts have already held) that the Freedom of Information Act compels disclosure of those photographs. For more on why this new secrecy law is so dangerous, see my post here; even The Washington PostEditorial Page excoriated the amendment and Obama's support for it.
When I wrote about this several days ago, the Senate had passed the Graham-Lieberman secrecy law as an amendment to the spending supplemental bill (which includes funding for Iraq and Afghanistan) without even bothering to take a formal roll call vote (on a voice vote). Although the House version of the supplemental bill did not contain this amendment, it was widely expected that it would simply be inserted in the House-Senate conference and then easily passed along with the final bill.
But passage of Graham-Lieberman now appears much less certain because of what appears to be the refusal of some key liberal House Democrats -- including Barney Frank -- to support it. The votes of liberal House Democrats actually matter (for once) because most House Republicans are refusing to support the overall supplemental bill due to their objections to a provision for $5 billion in funding to increase the IMF's lending capacity. To pass the supplemental spending bill, House leaders need the votes of numerous House Democrats who are currently refusing to vote for anything that contains the photo suppression amendment. If Congressional Democrats succeed in blocking enactment of this amendment, that would be a critical assertion for the first time of Congressional checks on Obama's desired powers and would, independently, prevent a truly odious new secrecy power from being enacted.
First there is this report, yesterday, from Congress Daily:
Democratic leaders postponed a House-Senate conference meeting they hoped would produce a compromise fiscal 2009 war supplemental spending bill Thursday after it appeared they might not have enough votes to pass the measure in the House. . . .
Democratic leaders are counting on convincing 18 of 51 self-described liberal or progressive Democrats who previously opposed the supplemental to now support it, enough Caucus members to ensure its passage. . . .
But liberal Democrats are threatening to withhold their support for the supplemental if it includes a provision in the Senate-passed billthat would allow Defense Secretary Robert Gates to withhold any "photograph relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States" if he certifies that the release of the photos could endanger citizens or the armed forces.
The provision, which is supported by President Obama, was offered as an amendment by Sen. Joseph Lieberman, I-Conn.
Rep. Barney Frank, D-Mass. -- who initially opposed the package and is now trying to help Democratic leaders raise support for it -- said he recently told Treasury Secretary Timothy Geithner that liberal Democrats would not likely support the package if it includes the Lieberman amendment.
"I made it clear to the administration that I believe that we can get liberals like myself who are against the war [to] vote for it because the IMF is so important, but not if the [Freedom of Information Act] exception is in it," Frank said.
Rep. Louise Slaughter, D-N.Y., previously supported the supplemental but said she would not vote for the bill if it includes the amendment.
"There is no reason in the world for us to vote to suspend" FOIA, Slaughter said.
While House Defense Appropriations Subcommittee Chairman John Murtha, D-Pa., conceded "we got big problems" with trying to pass the supplemental, he asserted that it would clear Congress by July 1. The military has said it needs the funding by July to avoid a disruption in other accounts, which would have to be raided to pay for the wars in Iraq and Afghanistan.
Bolstering that report, Jane Hamsher yesterday spoke with Barney Frank, who told her that continued inclusion of the Graham-Lieberman photo suppression amendment would prevent House leaders from getting the votes they need to pass the supplemental bill (either that, Frank said, or they would be forced to remove the IMF funding provision -- which Obama promised G-20 allies -- in order to re-attract GOP votes and then pass the bill with the Graham-Lieberman amendment included but without the IMF funding).
It would seem that Nancy Pelosi has a special obligation to ensure that the House bill does not include the Graham-Lieberman amendment. Despite her vocal support for a "Truth Commission" to investigate Bush crimes, she has been continuously accused of enabling the Bush administration's torture regime by helping to keep it a secret and doing nothing to impede it. If she ends up voting for the supplemental spending bill (as she will) which includes a provision allowing the indefinite suppression of photographic evidence of torture, that would certainly bolster those accusations. Having been briefed early on to some still-disputed extent on the Bush torture regime, does Pelosi now want to vote to vest the Pentagon with the unreviewable power to suppress evidence of torture even where FOIA compels its disclosure?
If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA's exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure -- as Obama is asking it to do. But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn't want to comply with court rulings and with current transparency laws.
FOIA was enacted by Congress in 1966 -- more than 40 years ago -- and, in 1974, Congress overrode a presidential veto (.pdf) of amendments that expanded its disclosure requirements in the wake of Nixonian secrecy abuses. Congress should defend and insist on presidential compliance with the important transparency law it passed and repeatedly strengthened -- not allow the White House and Republicans to jointly render it illusory by retroactively narrowing its provisions, all because the Obama White House wants to suppress evidence of Bush's war crimes in the face of clear FOIA requirements compelling disclosure.
I hope to post some information in just a little bit about which members of Congress should be called today by those who want to see House Democrats stand their ground. Preventing passage of the Graham-Lieberman amendment would be an important step both for transparency and the re-assertion of Congressional checks on still-expanding presidential powers and secrecy abuses.
UPDATE: As Jane Hamsher noted after speaking with Barney Frank yesterday (read Jane's analysis here), the White House and House Leadership are now working jointly to convince 18 House Democrats who currently oppose the bill [H.R 2346] to vote for it. That's how many are needed to ensure its passage. You can call those key members -- here -- and encourage them to continue to oppose this bill, particularly as long as it contains the FOIA-eroding, torture-protecting Graham-Lieberman photo suppression amendment. Those interested can and should call as many members as possible, and it's particularly important if any of them are your actual representatives. It would also be helpful, once you call, to use the program provided to convey what you were told as each member's response to your call.
UPDATE II: Nick Baumman of Mother Jones cheers the efforts of House Democrats to block this amendment and writes:
The photo suppression bill is an abomination that is reminiscent of the worst Bush-era excesses. It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even if you oppose releasing some of the photos, I don't see why you would want to give the White House the power to unilaterally decide what's best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill.
Exactly. We already have a law in place -- FOIA -- that is incredibly permissive in what it allows the government to keep secret. Obama is perfectly within his rights to appeal the two court decisions ruling that these photographs must be disclosed under FOIA. But passing a new law because you don't want to abide by the old one and because courts have rejected the President's claimed powers was one of the most defining and abusive strategies of the Bush administration. The fact that this proposed amendment vests unilateral, unchallengeable power in the Pentagon to decide, with no review and standards, what will remain secret makes it all the worse.
The issue is not whether disclosure of these photographs will produce value (although given that we are in the midst of an ongoing debate over both torture and accountability for it, it seems obvious that there is great value in having more evidence released showing how brutal and lawless our Government's treatment of detainees was). But that isn't the issue. The issue is whether or not you believe in transparency in government (a major plank of Obama's campaign), and whether you want the President to have the unilateral, unreviewable power to simply decree that the 4o-year-old FOIA law need not be complied with when it comes to all photographic evidence of detainee abuse.
Original article posted here.
Monday, November 10, 2008
Sunday, November 09, 2008
And now for a little good news . . .
Obama Positioned to Quickly Reverse Bush Actions
Stem Cell, Climate Rules Among Targets of President-Elect's Team
By Ceci Connolly and R. Jeffrey Smith
Washington Post Staff Writers
Sunday, November 9, 2008; A16
Transition advisers to President-elect Barack Obama have compiled a list of about 200 Bush administration actions and executive orders that could be swiftly undone to reverse White House policies on climate change, stem cell research, reproductive rights and other issues, according to congressional Democrats, campaign aides and experts working with the transition team.
A team of four dozen advisers, working for months in virtual solitude, set out to identify regulatory and policy changes Obama could implement soon after his inauguration. The team is now consulting with liberal advocacy groups, Capitol Hill staffers and potential agency chiefs to prioritize those they regard as the most onerous or ideologically offensive, said a top transition official who was not permitted to speak on the record about the inner workings of the transition.
In some instances, Obama would be quickly delivering on promises he made during his two-year campaign, while in others he would be embracing Clinton-era policies upended by President Bush during his eight years in office.
"The kind of regulations they are looking at" are those imposed by Bush for "overtly political" reasons, in pursuit of what Democrats say was a partisan Republican agenda, said Dan Mendelson, a former associate administrator for health in the Clinton administration's Office of Management and Budget. The list of executive orders targeted by Obama's team could well get longer in the coming days, as Bush's appointees rush to enact a number of last-minute policies in an effort to extend his legacy.
A spokeswoman said yesterday that no plans for regulatory changes had been finalized. "Before he makes any decisions on potential executive or legislative actions, he will be conferring with congressional leaders on both sides of the aisle, as well as interested groups," Obama transition spokeswoman Stephanie Cutter said. "Any decisions would need to be discussed with his Cabinet nominees, none of whom have been selected yet."
Still, the preelection transition team, comprising mainly lawyers, has positioned the incoming president to move fast on high-priority items without waiting for Congress.
Obama himself has signaled, for example, that he intends to reverse Bush's controversial limit on federal funding of embryonic stem cell research, a decision that scientists say has restrained research into some of the most promising avenues for defeating a wide array of diseases, such as Parkinson's.
Bush's August 2001 decision pleased religious conservatives who have moral objections to the use of cells from days-old human embryos, which are destroyed in the process.
But Rep. Diana DeGette (D-Colo.) said that during Obama's final swing through her state in October, she reminded him that because the restrictions were never included in legislation, Obama "can simply reverse them by executive order." Obama, she said, "was very receptive to that." Opponents of the restrictions have already drafted an executive order he could sign.
The new president is also expected to lift a so-called global gag rule barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal, said Cecile Richards, the president of Planned Parenthood Federation of America. When Bill Clinton took office in 1993, he rescinded the Reagan-era regulation, known as the Mexico City policy, but Bush reimposed it.
"We have been communicating with his transition staff" almost daily, Richards said. "We expect to see a real change."
While Obama said at a news conference last week that his top priority would be to stimulate the economy and create jobs, his advisers say that focus will not delay key shifts in social and regulatory policies, including some -- such as the embrace of new environmental safeguards -- that Obama has said will have long-term, beneficial impacts on the economy.
The president-elect has said, for example, that he intends to quickly reverse the Bush administration's decision last December to deny California the authority to regulate carbon dioxide emissions from automobiles. "Effectively tackling global warming demands bold and innovative solutions, and given the failure of this administration to act, California should be allowed to pioneer," Obama said in January.
California had sought permission from the Environmental Protection Agency to require that greenhouse gas emissions from vehicles be cut by 30 percent between 2009 and 2016, effectively mandating that cars achieve a fuel economy standard of at least 36 miles per gallon within eight years. Seventeen other states had promised to adopt California's rules, representing in total 45 percent of the nation's automobile market. Environmentalists cheered the California initiative because it would stoke innovation that would potentially benefit the entire country.
"An early move by the Obama administration to sign the California waiver would signal the seriousness of intent to reduce the nation's dependence on foreign oil and build a future for the domestic auto market," said Kevin Knobloch, president of the Union of Concerned Scientists.
Before the election, Obama told others that he favors declaring that carbon dioxide emissions are endangering human welfare, following an EPA task force recommendation last December that Bush and his aides shunned in order to protect the utility and auto industries.
Robert Sussman, who was the EPA's deputy administrator during the Clinton administration and is now overseeing EPA transition planning for Obama, wrote a paper last spring strongly recommending such a finding. Others in the campaign have depicted it as an issue on which Obama is keen to show that politics must not interfere with scientific advice.
Some related reforms embraced by Obama's transition advisers would alter procedures for decision-making on climate issues. A book titled "Change for America," being published next week by the Center for American Progress, an influential liberal think tank, will recommend, for example, that Obama rapidly create a National Energy Council to coordinate all policymaking related to global climate change.
The center's influence with Obama is substantial: It was created by former Clinton White House official John D. Podesta, a co-chairman of the transition effort, and much of its staff has been swept into planning for Obama's first 100 days in office.
The National Energy Council would be a counterpart to the White House National Economic Council that Clinton created in a 1993 executive order.
"It would make sure all the oars are rowing in the right direction" and ensure that climate change policy "gets lots of attention inside the White House," said Daniel J. Weiss, a former Sierra Club official and senior fellow with the Center for American Progress Action Fund.
The center's new book will also urge Obama to sign an executive order requiring that greenhouse gas emissions be considered whenever the federal government examines the environmental impact of its actions under the existing National Environmental Policy Act. Several key members of Obama's transition team have already embraced the idea.
Other early Obama initiatives may address the need for improved food and drug regulation and chart a new course for immigration enforcement, some Obama advisers say. But they add that only a portion of his early efforts will be aimed at undoing Bush initiatives.
Despite enormous pent-up Democratic frustration, Obama and his team realize they must strike a balance between undoing Bush actions and setting their own course, said Winnie Stachelberg, the center's senior vice president for external affairs.
"It took eight years to get into this mess, and it will take a long time to get out of it," she said. "The next administration needs to look ahead. This transition team and the incoming administration gets that in a big way."
Original article posted here.
Stem Cell, Climate Rules Among Targets of President-Elect's Team
By Ceci Connolly and R. Jeffrey Smith
Washington Post Staff Writers
Sunday, November 9, 2008; A16
Transition advisers to President-elect Barack Obama have compiled a list of about 200 Bush administration actions and executive orders that could be swiftly undone to reverse White House policies on climate change, stem cell research, reproductive rights and other issues, according to congressional Democrats, campaign aides and experts working with the transition team.
A team of four dozen advisers, working for months in virtual solitude, set out to identify regulatory and policy changes Obama could implement soon after his inauguration. The team is now consulting with liberal advocacy groups, Capitol Hill staffers and potential agency chiefs to prioritize those they regard as the most onerous or ideologically offensive, said a top transition official who was not permitted to speak on the record about the inner workings of the transition.
In some instances, Obama would be quickly delivering on promises he made during his two-year campaign, while in others he would be embracing Clinton-era policies upended by President Bush during his eight years in office.
"The kind of regulations they are looking at" are those imposed by Bush for "overtly political" reasons, in pursuit of what Democrats say was a partisan Republican agenda, said Dan Mendelson, a former associate administrator for health in the Clinton administration's Office of Management and Budget. The list of executive orders targeted by Obama's team could well get longer in the coming days, as Bush's appointees rush to enact a number of last-minute policies in an effort to extend his legacy.
A spokeswoman said yesterday that no plans for regulatory changes had been finalized. "Before he makes any decisions on potential executive or legislative actions, he will be conferring with congressional leaders on both sides of the aisle, as well as interested groups," Obama transition spokeswoman Stephanie Cutter said. "Any decisions would need to be discussed with his Cabinet nominees, none of whom have been selected yet."
Still, the preelection transition team, comprising mainly lawyers, has positioned the incoming president to move fast on high-priority items without waiting for Congress.
Obama himself has signaled, for example, that he intends to reverse Bush's controversial limit on federal funding of embryonic stem cell research, a decision that scientists say has restrained research into some of the most promising avenues for defeating a wide array of diseases, such as Parkinson's.
Bush's August 2001 decision pleased religious conservatives who have moral objections to the use of cells from days-old human embryos, which are destroyed in the process.
But Rep. Diana DeGette (D-Colo.) said that during Obama's final swing through her state in October, she reminded him that because the restrictions were never included in legislation, Obama "can simply reverse them by executive order." Obama, she said, "was very receptive to that." Opponents of the restrictions have already drafted an executive order he could sign.
The new president is also expected to lift a so-called global gag rule barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal, said Cecile Richards, the president of Planned Parenthood Federation of America. When Bill Clinton took office in 1993, he rescinded the Reagan-era regulation, known as the Mexico City policy, but Bush reimposed it.
"We have been communicating with his transition staff" almost daily, Richards said. "We expect to see a real change."
While Obama said at a news conference last week that his top priority would be to stimulate the economy and create jobs, his advisers say that focus will not delay key shifts in social and regulatory policies, including some -- such as the embrace of new environmental safeguards -- that Obama has said will have long-term, beneficial impacts on the economy.
The president-elect has said, for example, that he intends to quickly reverse the Bush administration's decision last December to deny California the authority to regulate carbon dioxide emissions from automobiles. "Effectively tackling global warming demands bold and innovative solutions, and given the failure of this administration to act, California should be allowed to pioneer," Obama said in January.
California had sought permission from the Environmental Protection Agency to require that greenhouse gas emissions from vehicles be cut by 30 percent between 2009 and 2016, effectively mandating that cars achieve a fuel economy standard of at least 36 miles per gallon within eight years. Seventeen other states had promised to adopt California's rules, representing in total 45 percent of the nation's automobile market. Environmentalists cheered the California initiative because it would stoke innovation that would potentially benefit the entire country.
"An early move by the Obama administration to sign the California waiver would signal the seriousness of intent to reduce the nation's dependence on foreign oil and build a future for the domestic auto market," said Kevin Knobloch, president of the Union of Concerned Scientists.
Before the election, Obama told others that he favors declaring that carbon dioxide emissions are endangering human welfare, following an EPA task force recommendation last December that Bush and his aides shunned in order to protect the utility and auto industries.
Robert Sussman, who was the EPA's deputy administrator during the Clinton administration and is now overseeing EPA transition planning for Obama, wrote a paper last spring strongly recommending such a finding. Others in the campaign have depicted it as an issue on which Obama is keen to show that politics must not interfere with scientific advice.
Some related reforms embraced by Obama's transition advisers would alter procedures for decision-making on climate issues. A book titled "Change for America," being published next week by the Center for American Progress, an influential liberal think tank, will recommend, for example, that Obama rapidly create a National Energy Council to coordinate all policymaking related to global climate change.
The center's influence with Obama is substantial: It was created by former Clinton White House official John D. Podesta, a co-chairman of the transition effort, and much of its staff has been swept into planning for Obama's first 100 days in office.
The National Energy Council would be a counterpart to the White House National Economic Council that Clinton created in a 1993 executive order.
"It would make sure all the oars are rowing in the right direction" and ensure that climate change policy "gets lots of attention inside the White House," said Daniel J. Weiss, a former Sierra Club official and senior fellow with the Center for American Progress Action Fund.
The center's new book will also urge Obama to sign an executive order requiring that greenhouse gas emissions be considered whenever the federal government examines the environmental impact of its actions under the existing National Environmental Policy Act. Several key members of Obama's transition team have already embraced the idea.
Other early Obama initiatives may address the need for improved food and drug regulation and chart a new course for immigration enforcement, some Obama advisers say. But they add that only a portion of his early efforts will be aimed at undoing Bush initiatives.
Despite enormous pent-up Democratic frustration, Obama and his team realize they must strike a balance between undoing Bush actions and setting their own course, said Winnie Stachelberg, the center's senior vice president for external affairs.
"It took eight years to get into this mess, and it will take a long time to get out of it," she said. "The next administration needs to look ahead. This transition team and the incoming administration gets that in a big way."
Original article posted here.
Wednesday, October 29, 2008
Monday, July 28, 2008
Saturday, July 26, 2008
The judiciary committee hearings on impeachment
Rep. Dennis Kucinich (D-OH) brought about today’s Judiciary Cmte. hearing on the executive power and the Bush Admin. The hearing is partly based on a single article of impeachment he brought against Pres. Bush, and on alleged misconduct and unlawful expansion of executive power.
Part 1
Part 2
Part 3
Thursday, July 24, 2008
Monday, July 21, 2008
Rights? Wrong!
| July 21, 2008 Court Confirms President's Dictatorial Powers |
| by Andy Worthington |
| Wake up, America! On July 15, the Court of Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v. Pucciarelli [.pdf] that the president can arrest U.S. citizens and legal residents inside the United States and imprison them indefinitely, without charge or trial, based solely on his assertion that they are "enemy combatants." Have a little think about it, and you'll see that the Fourth Circuit judges have just endorsed dictatorial powers. In the words of Judge William B. Traxler, whose swing vote confirmed the court's otherwise divided ruling, "the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions…. The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the president, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities." As was pointed out by Judge Diana Gribbon Motz, who was steadfastly opposed to the majority verdict (and whose opinion was endorsed by Judges M. Blane Michael, Robert B. King, and Roger L. Gregory), "the duration of the relevant hostilities" is a disturbingly open-ended prospect. After citing the 2007 State of the Union Address, in which the president claimed that "The war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,'" Judge Motz noted, "Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a 'war on terror' has no bounds." The Court of Appeals made its extraordinary ruling in relation to a habeas corpus claim in the case of Ali Saleh Kahlah al-Marri, whose story I reported at length here. To recap briefly, Marri, a Qatari national who had studied in Peoria, Ill., in 1991, returned to the United States in September 2001, with his U.S. residency in order, to pursue post-graduate studies, bringing his family – his wife and five children – with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an "enemy combatant" instead. He was then moved to a naval brig in Charleston, S.C., where he has now been held for five years and one month in complete isolation in a blacked-out cell in an otherwise unoccupied cell block. For the first 14 months of this imprisonment, when he received no visitors from outside the U.S. military or the security agencies, he was subjected to sleep deprivation and extreme temperature manipulation, frequently deprived of food and water, and interrogated repeatedly. In August 2003, representatives of the International Red Cross were finally allowed to visit Marri, and two months later he was permitted to meet with a lawyer, when he finally had the opportunity to explain that his interrogators had "threatened to send [him] to Egypt or to Saudi Arabia where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him." Based on advice given to Donald Rumsfeld by Defense Department lawyers regarding the use of isolation at Guantánamo, when the lawyers warned that it was "not known to have been generally used for interrogation purposes for longer than 30 days," Marri has now been held in solitary confinement for 66 times longer than the amount of time recommended by the Pentagon's own lawyers (this figure includes the six months that he spent in isolation in Peoria County Jail and the Metropolitan Correction Center in New York, before being transferred to Charleston). It is, therefore, unsurprising that his lawyer, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, has explained that he is suffering from "severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation." So what is Ali al-Marri supposed to have done to justify being held in solitary confinement for almost as long as the duration of the Second World War? The presidential order declaring him an "enemy combatant" stated simply that he was closely associated with al-Qaeda and presented "a continuing, present, and grave danger to the national security of the United States." Elaborating, in subsequent statements, the government has claimed that he was part of an al-Qaeda sleeper cell, who had been instructed to carry out further terrorist attacks in the United States, targeting reservoirs, the New York Stock Exchange, and military academies. What's particularly worrying about these charges is that, by the government's own admission, the primary sources for its supposed evidence against Marri are confessions made by Khalid Sheikh Mohammed (KSM), the alleged architect of the 9/11 attacks, during the three months following his capture in March 2003, when, as even the CIA has admitted, he was subjected to waterboarding, a form of controlled drowning, which the torturers of the Spanish Inquisition at least had the honesty to call tortura del aqua. As I discussed at length in an article last summer, KSM stated during his tribunal at Guantánamo in March 2007 that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions, including Majid Khan, one of 13 supposedly "high-value" detainees transferred with KSM to Guantánamo from secret CIA prisons in September 2006; Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo; and his son Uzair, who was convicted in the United States on dubious charges in November 2005 and sentenced to 30 years in prison. As I also stated last November, "It's possible, therefore, that Marri is another victim of KSM's tangled web of tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, and not in leaks and proclamations from an administration that appears to be intent on holding him without charge or trial for the rest of his life." When I wrote these words, it seemed possible that the Fourth Circuit judges would act to prevent Marri from having the dubious distinction of being the last "enemy combatant" on the U.S. mainland, and would put pressure on the government to transfer him to a federal prison to face a trial in a U.S. court, as happened with Jose Padilla, a U.S. citizen and one of two other "enemy combatants" imprisoned without charge or trial – the other being Yaser Hamdi, a U.S.-born Saudi, who was held in Guantánamo until it was ascertained that he held U.S. citizenship. In Hamdi's case, however, a brief stay at the Charleston brig was followed by a deal that allowed him to return to Saudi Arabia. In June 2007, a panel of three Fourth Circuit judges dealt a blow to the administration's claims by ruling that "the Constitution does not allow the president to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.'" Last week's decision followed a successful appeal by the government, but when the Fourth Circuit court met en banc to reconsider Marri's case in October, it seemed possible that they would uphold the panel's June verdict. When Judge Michael asked the government's representative, Gregory J. Barre, "How long can you keep this man in custody?" and Garre replied that it could "go on for a long time," depending on the duration of the "war" with al-Qaeda, Judge Michael stated, "It looks like a lifetime." I now realize, of course, that it was always highly improbable that the Fourth Circuit court – widely regarded as the most right-wing court in the country – would end Marri's legal limbo, although it was somewhat ironic that, in a separate ruling, the swing-voting Judge Traxler ruled in Marri's favor when it came to a decision to grant him some as yet unspecified ability to challenge the basis of his definition as an "enemy combatant." This, at least, earned him the gratitude of Judge Motz, who stated that "the evidentiary proceedings envisaged by Judge Traxler will at least place the burden on the government to make an initial showing that 'the normal due process protections available to all within this country' are impractical or unduly burdensome in Marri's case and that the hearsay declaration that constitutes the government's only evidence against Marri is 'the most reliable available evidence' supporting the government's allegations." In other respects, however, the court only added to its reputation as a defender of the indefensible. Not content with endorsing the president's dictatorial right to imprison "enemy combatants" without charge or trial on the U.S. mainland, the judges responsible for the majority verdict ruled that the president did not even have to allege, as he did with Yaser Hamdi and Jose Padilla, that an "enemy combatant" had either been in Afghanistan or had ever raised arms against U.S. forces. The injustice of this was pointed out in the opinion of Judge Motz, who stated that, "unlike Hamdi and Padilla, Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict, and not alleged to have engaged in combat with United States forces anywhere in the world." Judge Motz added, however, "With regret, we recognize that this view does not command a majority of the court. Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone – including an American citizen – even though he has never affiliated with an enemy nation, fought alongside any nation's armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power." Disturbingly, as Judge Motz mentioned above, the court also indicated its presumption that its ruling applies not just to legal residents like Marri, but to U.S. citizens as well. Judge Traxler noted, "it is likely that the constitutional rights our court determines exist, or do not exist, for Marri will apply equally to our own citizens under like circumstances," and Judge Motz explained that the lack of distinction between citizens and residents had become apparent at oral argument, when the government "finally acknowledged that an alien legally resident in the United States, like Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the government had to concede that if Marri can be detained as an enemy combatant, then the government can also detain any American citizen on the same showing and through the same process." We have, to be honest, been here before. In September 2005, a three-member panel upheld, in Padilla's case, the president's power to hold U.S. citizens indefinitely without charge or trial [.pdf]. This verdict was never tested, as the government took Padilla out of the brig and into the court system (where he was convicted in January) before the Supreme Court could rule on his case, but as Glenn Greenwald noted in an article at Salon.com, the upshot is that the 2005 Padilla verdict still stands. To that extent, all that has changed now is that the Fourth Circuit court has reinforced its former ruling en banc. Marri's lawyers will doubtless appeal, and, if justice still counts for anything, his case will go all the way to the Supreme Court. However, it remains incomprehensible to me that the whole sorry saga has lasted for so long already. As Jonathan Hafetz and his colleagues explained last November when they presented their arguments to the Fourth Circuit judges (and as Judge Motz noted last week), the president "lacks the legal authority to designate and detain al-Marri as an 'enemy combatant' for two principal reasons": firstly, because the Constitution "prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield," and secondly, because, although a district court previously held that the president was authorized to detain Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the president to use "all necessary and appropriate force" against those involved in any way with the 9/11 attacks), Congress explicitly prohibited "the indefinite detention without charge of suspected alien terrorists in the United States" in the PATRIOT Act, which followed five weeks later. That seems pretty clear to me. In the "War on Terror," however, as I have learned during my research over the last two and a half years, all forms of logical thought – sometimes in the courts, most of the time in military custody, and as a permanent fixture in the war rooms where torture was endorsed – have been engulfed in a fog of fear and barbarism. I leave the final words to Judge Motz, and her clear-eyed awareness of the injustice of the Marri verdict. "To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president call them 'enemy combatants,' would have disastrous consequences for the Constitution – and the country," Judge Motz wrote. "For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power – were a court to recognize it – that could lead all our laws 'to go unexecuted, and the government itself to go to pieces.' We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic." Unless Ali al-Marri is allowed a meaningful review of his status as an "enemy combatant," Judge Motz's fears have already come true. |
Saturday, July 19, 2008
On the subject of legal charades: just where did the 4th Amendement go?
U.S. Is Alone in Rejecting All Evidence if Police Err
Original article posted here.
Bradley Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him.
A year and a half later, an Ontario trial judge ruled that the officer’s conduct was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s explanation for stopping and searching Mr. Harrison — confusion about a license plate — was contrived and defied credibility, the judge said, and the search “was certainly not reasonable.”
In the United States, that would have been good news for Mr. Harrison. Under the American legal system’s exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search.
But both the Canadian trial judge and an appeals court refused to exclude the evidence. Mr. Harrison was sentenced to five years in prison.
“Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court.
The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.
“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”
But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”
The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.
Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”
Australia also uses a balancing test. It considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence. “Any unfairness to the particular accused” in most cases, the High Court of Australia wrote in 1995, “will be of no more than peripheral importance.”
The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.
In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found. In the last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia and Washington state suppressed evidence in cases involving drugs, guns, burglary and child pornography under the mandatory version of the exclusionary rule.
Some specialists in comparative criminal law say that the decentralized nature of American law enforcement, with thousands of local police departments around the nation, requires a more rigorous and consistent approach to deterring misconduct. The law enforcement systems in Canada and England, by contrast, are notably less fragmented and may be subject to more stringent professional discipline.
But not always. The officer who pulled over Mr. Harrison’s car in Ontario thought the car should have had a front license plate, even though the car was from Alberta, which does not require one. “We respect the decision of the courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial Police, but “their criticism alone does not by default lead to an internal complaint.”
Supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment, which bans unreasonable searches and seizures.
“The exclusionary rule deters police misconduct in a straightforward and effective way,” said a supporting brief filed by the National Association of Criminal Defense Lawyers in the case the Supreme Court will hear in October. “It reduces the value of evidence obtained as a result of Fourth Amendment violations, and thus eliminates what would otherwise be a powerful incentive for police to engage in such violations.”
Several justices have in recent years questioned whether the rule still makes sense in light of what they called the increased professionalism of the police and the availability of alternative and arguably more direct ways to punish misconduct, including internal discipline and civil suits.
Opponents of the rule say it is indirect, incomplete and in a way perverse. Even if it deters unlawful searches, exclusion of evidence, for instance, offers no remedy to innocent people whose rights were violated by unlawful searches.
More important, as Justice Robert H. Jackson wrote in 1954, the exclusionary rule “deprives society of its remedy against one lawbreaker because he has been pursued by another.” Or, in Judge Benjamin Cardozo’s famous mocking formulation in a 1926 decision for New York’s highest court rejecting the rule: “The criminal is to go free because the constable has blundered.”
That reasoning continues to resonate with some experts.
“Lots of scholars argue that the mandatory exclusionary rule ought to be re-examined,” said David A. Sklansky, a law professor at the University of California, Berkeley. “Those scholars are not all on the right of the political spectrum.” Professor Sklansky said he believed that the rule’s benefits continued to outweigh its costs.
Most specialists continue to support the rule, said Orin S. Kerr, a law professor at George Washington University. “The U.S. experience is a consequence of history,” Professor Kerr said. “It’s a response to the police not following the law in the absence of this remedy.”
The idea that exclusion is the proper response to police misconduct is of relatively recent vintage.
“Supporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a law professor at Yale, wrote in The Harvard Law Review in 1994.
According to Professor Amar, the framers of the Fourth Amendment assumed that the right it guaranteed would be enforced through civil lawsuits, not exclusion. “Both before and after the Revolution,” he wrote, “the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals and the like.”
These days, law professors and defense lawyers say, civil suits are less likely to be effective. Criminals whose rights have been violated are not attractive plaintiffs, and they may not have the resources to litigate, particularly from behind bars. Civil suits must, moreover, overcome various legal doctrines limiting the liability of police officers and their employers.
The Supreme Court started requiring the exclusion of improperly obtained evidence in 1914 — but only in federal cases.
For many decades afterward, the Supreme Court refused to apply the principle to states, saying they could choose the appropriate remedy for police misconduct — including civil suits and criminal prosecutions — and were not required to suppress evidence. In a 1949 decision, the court justified that position in part with a rationale now disfavored in some circles: a survey of foreign law.
“Of 10 jurisdictions within the United Kingdom and the British commonwealth of nations,” Justice Felix Frankfurter wrote for the majority, “none has held evidence obtained by illegal search and seizure inadmissible.” The right to be free of arbitrary police intrusion is fundamental, Justice Frankfurter wrote, but the legal remedy for the violation of that right can vary.
It was not until 1961 that the Warren Court, in one of its signature decisions, concluded in Mapp v. Ohio that only the mandatory suppression of evidence could adequately address wrongdoing by the police in all cases, state and federal.
Seven Cleveland police officers had broken into and searched Dollree Mapp’s home without producing a warrant, manhandling her and rummaging through her personal papers. Though the Ohio Supreme Court concluded that the search had been unlawful, it affirmed Ms. Mapp’s conviction on obscenity charges based on materials the police found in her home.
That was too much for a majority of the Supreme Court to stomach. “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote for the court. Only the exclusion of evidence could do the job, he said; other remedies had proved “worthless and futile.”
The Supreme Court has in recent years whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it. Chief Justice John G. Roberts Jr. and Justice Scalia, neither of whom is enamored with citing foreign law, each noted in recent decisions that the American approach in this area is unique and has been universally rejected elsewhere.
In a third decision two years ago, Hudson v. Michigan, Justice Scalia seemed to say that the exclusionary rule had outlived its original purpose. The case involved a conceded violation of a rule requiring police executing a search warrant to knock and announce themselves.
Much had changed since the exclusionary rule was applied to states in 1961, Justice Scalia wrote. Police departments had become more professional, he said, and various kinds of civil suits against officials and the government had become available. “As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”
Justice Stephen G. Breyer, writing for the four dissenters, said that exclusion remains the best and most reliable deterrent. He added that the logic of the majority’s objections was not limited to “knock and announce” violations but was “an argument against the Fourth Amendment’s exclusionary principle itself.”
Original article posted here.
Monday, July 07, 2008
More of a legal disgrace and the great symbolic but often empty reality of "the Rule of Law"
| |
| 'State Secrets' Privilege Derails Rendition Suit |
by William Fishe |
| Maher Arar, whose "rendition" to Syria is widely viewed as an egregious example of mistaken identity, has again been denied the right to appear in court, and Congressional efforts to rein in the George W. Bush administration's widespread use of national security as a defense appear to be foundering. Late last month, a federal court of appeals ruled that the lawsuit brought by Arar against former Attorney General John Ashcroft, FBI director Robert Mueller and other senior government officials could not be heard. After government lawyers invoked the "state secrets" privilege, the court concluded that hearing Arar's claims would interfere with sensitive matters of foreign policy and national security. Arar, a Syrian-born Canadian, was detained on suspicion of being a terrorist at New York's John F. Kennedy Airport in September 2002 while in transit to his home in Canada from a vacation in North Africa. Based on information provided to US authorities by the Canadian government, Arar was held incommunicado for two weeks and then flown to Syria where he was imprisoned, interrogated, and tortured for close to a year. The Bush administration labeled him a member of al-Qaeda. When the government invokes the "state secrets" privilege, federal courts have routinely dismissed lawsuits because they cannot proceed with the requested evidence. Most recently, the privilege was used to dismiss a suit over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition". In a rare move, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watchlist, ruling that the plaintiff, a local businessman, could find out whether his name is on the list. In one of the Arar case's more bizarre twists, the court ruled that, as a foreigner who had not been formally admitted to the US, Arar had no constitutional due process rights. It was the US government that denied Arar admission to the country. Both the Syrian and Canadian governments said they had found that Arar had no connection to any criminal or terrorist organization or activity. After an intensive two-year investigation, the Canadians apologized to Arar for Canada's role in his rendition and awarded him a 10-million-dollar settlement. The US government has stopped short of an apology to Arar, but at a recent Congressional hearing, Secretary of State Condoleezza Rice admitted that the US had mishandled the case. "We do not think that this case was handled as it should have been," Rice told the House Foreign Affairs Committee. "We do absolutely not wish to transfer anyone to any place in which they might be tortured." The court also rejected Arar's claim that US officials are liable under the Torture Victim Protection Act, for conspiring with Syria to subject Arar to torture under color of foreign law. The TVPA creates liability for torture inflicted under color of foreign law, and courts have held that it applies not only to the torturer, but also to those who aid or abet the torture. Arar alleged that US officials aided and abetted in his torture at Syrian hands, but the court ruled that the federal officials could not be held responsible for their conspiracy with the Syrians because they were federal officials exercising federal authority. Arar's lawyer, Professor David Cole of the Georgetown University Law Center, appearing on behalf of the Center for Constitutional Rights (CCR), told IPS, "The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1,100-page report, formally apologized, and awarded Mr. Arar 10 million dollars in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy." Maria LaHood, a senior CCR attorney, told IPS that her organization plans to either petition the appeals court for rehearing, or petition the Supreme Court to decide the case. She added, "Giving short shrift to the facts, the majority opinion grants impunity to US officials for sending Maher to Syria to be tortured and for preventing him from seeking relief in the courts. The defendants have again blocked Maher's access to justice, this time with the court's seal of approval." Meanwhile, legislation to curb the government's use of the state secrets privilege appears to be stalled in Congress. In April, the Senate Judiciary Committee approved a bill that attempts to limit the government's use of the state secrets privilege. The bill was introduced by Sens. Edward Kennedy, Massachusetts Democrat, and Pennsylvania's Arlen Specter, the senior Republican on the Judiciary Committee. It would create a uniform set of procedures for federal judges to employ when the government asserts the privilege. It would require the government to produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past. It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery. "It's long past time for Congress to address the state secrets privilege. Congress needs to ensure – and the American people need to feel confident – that the courts are adjudicating the privilege properly and not just giving the executive a free pass. No one in America should be above the law. That's why this legislation is so critical," Sen. Kennedy said. But the bill lacked bipartisan support on the committee. Only one Republican, Sen. Specter, voted to move it to the Senate floor for a vote. The Senate has many bills backed up in its queue and little time to even get them introduced, much less put to a vote. Moreover, its calendar has become increasingly dominated by elections in the fall. Nonetheless, there has been other recent action in Congress. The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties and the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight, held a joint oversight hearing in June on the report of the Department of Homeland Security Office of Inspector General on Arar's removal. Arar testified at the hearing – the first time he has appeared before any US governmental body. His testimony was via video because he is still on the government's "no-fly" watchlist. During the hearing, individual members of Congress publicly apologized to him, though the government has not. At the hearing, DHS Inspector General Richard G. Skinner announced that his office has reopened its investigation of the government's treatment of Arar. He told the hearing that he could not rule out the possibility that immigration officials violated a law that prohibits the US government from sending anyone to a country where he or she is likely to be tortured, especially since investigators were not allowed to question all participants. Earlier, Skinner's testimony and a 50-page report found that US immigration officials acted appropriately in determining that Arar could be expelled. But he said immigration authorities concluded that sending Arar to Syria "would more likely than not result in his torture" and relied on "ambiguous" assurances from Syria that he would not be. Skinner also questioned US officials' minimal efforts to notify attorneys for Arar before a late-night hearing where he could argue his fear of torture. |
Wednesday, July 02, 2008
Friday, June 27, 2008
First reneging on stated opposition to retroactive telecom immunity, now backing massive expansion of death penalty, Obama becoming same ole shit.
Obama disagrees with high court on child rape case
CHICAGO (AP) — Democrat Barack Obama said Wednesday he disagrees with the Supreme Court's decision outlawing executions of people who rape children, a crime he said states have the right to consider for capital punishment.
"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."
The court's 5-4 decision Wednesday struck down a Louisiana law that allows capital punishment for people convicted of raping children under 12, saying it violates the Constitution's ban on cruel and unusual punishment.
The ruling spares the only people in the U.S. under sentence of death for that crime — two Louisiana men convicted of raping girls 5 and 8. It also invalidates laws on the books in five other states that allowed executions for child rape that does not result in the death of the victim.
Obama's Republican rival, John McCain, also criticized the court's decision, calling it "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime."
"That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing," McCain said in a statement.
Obama, the likely Democratic presidential nominee, said that had the court "said we want to constrain the abilities of states to do this to make sure that it's done in a careful and appropriate way, that would have been one thing. But it basically had a blanket prohibition and I disagree with that decision."
Obama has two daughters, ages 7 and 9.
He has long supported the death penalty while criticizing the way it is sometimes applied.
As an Illinois legislator, he helped rewrite the state's death penalty system to guard against innocent people being sentenced to die. The new safeguards included requiring police to videotape interrogations and giving the state Supreme Court more power to overturn unjust decisions.
He also opposed legislation making it easier to impose the death penalty for murders committed as part of gang activity. Obama argued the language was too vague and could be abused by authorities.
But Obama has never rejected the death penalty entirely. He supported death sentences for killing volunteers in community policing programs and for particularly cruel murders of elderly people.
"While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," he wrote in his book "The Audacity of Hope."
In 1988, a question about rape and capital punishment tripped up Democratic presidential nominee Michael Dukakis.
Dukakis was asked during a nationally televised debate with Republican George H. W. Bush whether he'd still oppose the death penalty if his wife were raped and murdered.
His unemotional, dispassionate answer was ridiculed, and gave Republicans more material to paint him as an emotionless liberal.
At the news conference Wednesday, Obama answered questions on a number of topics, including a compromise eavesdropping bill the Senate was preparing to consider. He said he supports the bill, which would establish new rules to govern when the National Security Agency, CIA, FBI or others can tap American phone and computer lines.
The bill also effectively gives legal immunity to telecommunications companies that helped the government eavesdrop on calls and e-mails for years after the Sept. 11 terrorist attacks, without the approval of a special, secret court.
Obama, who opposed an earlier version of the bill, said he supports the compromise partly because it would prohibit presidents from superseding surveillance rules in the future.
Wednesday, June 25, 2008
Don't be fooled, this court decision represents the fact that execution for NON CAPITAL crimes is simply one vote away
Supreme Court Rejects Death Penalty for Child Rape
COPY OF COURT'S OPINION IS HERE.
By DAVID STOUT
WASHINGTON — The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.
“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.
Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment.
Moreover, Justice Kennedy wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically go by between a crime and the execution of the defendant.
“Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” Justice Kennedy wrote.
The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., generally regarded as the conservative wing of the tribunal.
Justice Alito wrote a dissent lamenting that the majority had ruled out executing someone for raping a child “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” Not since 1964 has anyone been executed in the United States for a crime other than murder, and of about 3,300 inmates now on death row, only two are facing execution for an offense that did not involve a killing — and both of those inmates are in Louisiana. One is the man involved in the case the court decided, Patrick Kennedy, who was sentenced to death for the rape of his 8-year-old stepdaughter and the other is Richard Davis, who was condemned for assaulting a 5-year-old girl.
The case decided on Wednesday, Kennedy v. Louisiana, No. 07-343, does not overturn the defendant’s conviction. Rather, it returns the case to the Louisiana courts for resentencing.
Kennedy v. Louisiana was the latest in a series of cases in which the justices have weighed particular applications of capital punishment. In 2002, for instance, the Supreme Court barred the execution of mentally retarded defendants, and in 2005 it banned the execution of people for crimes they committed before they were 18.
But, as Chief Justice Roberts observed when Kennedy v. Louisiana was argued on April 16: “This is quite different. It is focused on the nature of the offense.” Indeed, a theme that ran through the argument was that, while the death penalty is a punishment like no other, the rape of a child is a crime like no other.
In 1977, the Supreme Court banned death sentences for rape. But the victim in that case, Coker v. Georgia, was a young married woman, and the ruling did not specifically discuss the rape of a child. Over the past 13 years, several states have reacted to public outrage over crimes against children by amending their statutes to make the rape of a child punishable by death.
Louisiana was the first state to do so, amending its death-penalty law in 1995 to include rape of a child under the age of 12. But unlike Louisiana, the other states with similar provisions (Georgia, Montana, Oklahoma, South Carolina and Texas) generally limit the death penalty to defendants previously convicted of sex crimes against children.
Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued before the justices that it was “at odds with national values” for the state to execute his client, who had never committed such a crime before.
But Justice Scalia pressed Mr. Fisher on that assertion, noting that the recent trend has been “more and more states permitting the capital punishment” for the rape of a child.
As for the case at hand, Juliet L. Clark, an assistant district attorney from Gretna, La., countered that Mr. Kennedy, who weighs 300 pounds, had committed “a very savage rape” that caused serious injuries to his victim. And R. Ted Cruz, the Solicitor General for the State of Texas, who argued as a “friend of the court” on the side of Louisiana, said that Mr. Kennedy (like Mr. Davis, the other child-rape defendant on Louisiana’s death row) had “committed crimes that are just unspeakable.”
Responding to a question from Justice Ginsburg, Ms. Clark said the Louisiana child-rape law could apply regardless of the sex of the criminal or that of the victim.
And in support of her argument that crimes against children have long been viewed with special revulsion, and as deserving of special punishment, Ms. Clark pointed out that the Supreme Court ruled in 1990 that states can make it a crime to possess child pornography even in one’s home.
That ruling, in Osborne v. Ohio, carved out an exception to a 1969 Supreme Court ruling that the Constitution protects the possession of obscene material in the privacy of one’s residence. Justice Byron R. White wrote for the 6-to-3 majority in the Osborne case, reasoning that Ohio was justified in trying to “destroy a market for the exploitative use of children.”
Of the current Supreme Court, only Justices Scalia, Kennedy and Stevens took part in the 1990 Osborne decision. Justices Scalia and Kennedy were in the majority; Justice Stevens joined with Justices William J. Brennan Jr. and Thurgood Marshall in finding the Ohio law to be unconstitutionally broad.
Original article posted here.
COPY OF COURT'S OPINION IS HERE.
By DAVID STOUT
WASHINGTON — The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.
“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.
Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment.
Moreover, Justice Kennedy wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically go by between a crime and the execution of the defendant.
“Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” Justice Kennedy wrote.
The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., generally regarded as the conservative wing of the tribunal.
Justice Alito wrote a dissent lamenting that the majority had ruled out executing someone for raping a child “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” Not since 1964 has anyone been executed in the United States for a crime other than murder, and of about 3,300 inmates now on death row, only two are facing execution for an offense that did not involve a killing — and both of those inmates are in Louisiana. One is the man involved in the case the court decided, Patrick Kennedy, who was sentenced to death for the rape of his 8-year-old stepdaughter and the other is Richard Davis, who was condemned for assaulting a 5-year-old girl.
The case decided on Wednesday, Kennedy v. Louisiana, No. 07-343, does not overturn the defendant’s conviction. Rather, it returns the case to the Louisiana courts for resentencing.
Kennedy v. Louisiana was the latest in a series of cases in which the justices have weighed particular applications of capital punishment. In 2002, for instance, the Supreme Court barred the execution of mentally retarded defendants, and in 2005 it banned the execution of people for crimes they committed before they were 18.
But, as Chief Justice Roberts observed when Kennedy v. Louisiana was argued on April 16: “This is quite different. It is focused on the nature of the offense.” Indeed, a theme that ran through the argument was that, while the death penalty is a punishment like no other, the rape of a child is a crime like no other.
In 1977, the Supreme Court banned death sentences for rape. But the victim in that case, Coker v. Georgia, was a young married woman, and the ruling did not specifically discuss the rape of a child. Over the past 13 years, several states have reacted to public outrage over crimes against children by amending their statutes to make the rape of a child punishable by death.
Louisiana was the first state to do so, amending its death-penalty law in 1995 to include rape of a child under the age of 12. But unlike Louisiana, the other states with similar provisions (Georgia, Montana, Oklahoma, South Carolina and Texas) generally limit the death penalty to defendants previously convicted of sex crimes against children.
Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued before the justices that it was “at odds with national values” for the state to execute his client, who had never committed such a crime before.
But Justice Scalia pressed Mr. Fisher on that assertion, noting that the recent trend has been “more and more states permitting the capital punishment” for the rape of a child.
As for the case at hand, Juliet L. Clark, an assistant district attorney from Gretna, La., countered that Mr. Kennedy, who weighs 300 pounds, had committed “a very savage rape” that caused serious injuries to his victim. And R. Ted Cruz, the Solicitor General for the State of Texas, who argued as a “friend of the court” on the side of Louisiana, said that Mr. Kennedy (like Mr. Davis, the other child-rape defendant on Louisiana’s death row) had “committed crimes that are just unspeakable.”
Responding to a question from Justice Ginsburg, Ms. Clark said the Louisiana child-rape law could apply regardless of the sex of the criminal or that of the victim.
And in support of her argument that crimes against children have long been viewed with special revulsion, and as deserving of special punishment, Ms. Clark pointed out that the Supreme Court ruled in 1990 that states can make it a crime to possess child pornography even in one’s home.
That ruling, in Osborne v. Ohio, carved out an exception to a 1969 Supreme Court ruling that the Constitution protects the possession of obscene material in the privacy of one’s residence. Justice Byron R. White wrote for the 6-to-3 majority in the Osborne case, reasoning that Ohio was justified in trying to “destroy a market for the exploitative use of children.”
Of the current Supreme Court, only Justices Scalia, Kennedy and Stevens took part in the 1990 Osborne decision. Justices Scalia and Kennedy were in the majority; Justice Stevens joined with Justices William J. Brennan Jr. and Thurgood Marshall in finding the Ohio law to be unconstitutionally broad.
Original article posted here.
Subscribe to:
Posts (Atom)