Recently in Judicial Matters Category

Harper's Scott Horton features a story about the presentation of the Ridenhour Prize for Truth-Telling Lieutenant Commander Matthew Diaz.

Diaz deserves the support of every U.S. citizen who still believes in the rule of law and not of men. Who believes that even in a time of war, the president and his administration must follow our law and the treaties ratified by this nation.

Horton describes Diaz's heroic actions:

Matthew Diaz served his country as a staff judge advocate at Guantánamo. He watched a shameless assault on America’s Constitution and commitment to the rule of law carried out by the Bush Administration. He watched the introduction of a system of cruel torture and abuse. He watched the shaming of the nation’s uniformed services, with their proud traditions that formed the very basis of the standards of humanitarian law, now torn asunder through the lawless acts of the Executive. Matthew Diaz found himself in a precarious position—as a uniformed officer, he was bound to follow his command. As a licensed and qualified attorney, he was bound to uphold the law. And these things were indubitably at odds.

Diaz resolved to do something about it. He knew the Supreme Court twice ruled the Guantánamo regime, which he was under orders to uphold, was unlawful. In the Hamdan decision, the Court went a step further. In powerful and extraordinary words, Justice Kennedy reminded the Administration that Common Article 3 of the Geneva Conventions was binding upon them, and that a violation could constitute a criminal act. One senior member of the Bush legal team, informed of the decision over lunch, was reported to have turned “white as a sheet” and to have immediately excused himself. For the following months, Bush Administration lawyers entered into a frenzied discussion of how to protect themselves from criminal prosecution.

For his efforts to uphold the rule of law, Diaz was subjected to retaliation by military and political authorities.

Diaz spent six months in prison and left it bankrupt and without a job. In addition to his sentence, the Pentagon is working aggressively to have Diaz stripped of his law license so he will not be able to practice his profession. The Bush Administration has sought to criminalize, humiliate and destroy Diaz. Its motivation could not be clearer: Diaz struck a blow for the rule of law. And nothing could be more threatening to the Bush Administration than this.

And that is why we must celebrate anyone who is willing to try to hold the Bush Administration to account. Go read Horton's article and learn about an American hero -- and an unlawful political regime.

We appear to be headed to a new low as a nation as the Bush Administration possibly seeks to use evidence gained through torture methods in military tribunals. From ThinkProgress:

On CNN last night, Charles Swift, the “hero of Guantanamo” who represented Salim Hamdan in the case Hamdan v. Rumsfeld, slammed the government’s refusal to rule out waterboarding-based evidence in the military commission:

SWIFT: And if we use — we move beyond the torture discussion to the question of using this in a trial where life and death is at stake. If we use waterboarded testimony in that trial, to my knowledge…the last precedent for using that kind of testimony was the Spanish Inquisition.

I never really thought the United States of America would be seriously compared to the Spanish Inquisition. Nice work, Mr. President.

Really. We are supposed to be better than this.

Anyone? Hello, Democratic majority in Congress?

No citizen of this great nation should remain silent after hearing Attorney General Michael Mukasey's testimony that the Department of Justice will not investigate whether the use of torture (waterboarding) was illegal or whether the Bush Administration's warrentless wiretapping program was illegal. As Talking Points Memo's David Kurtz summarizes:

We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not.

That is a big deal. If Congress cannot see that this is a direct attack on our Constitutional system, and on the powers of Congress itself, then we need new members of Congress.

Over at Altercation, Charlie Pierce has an appropriately outraged response, one that I wish would wake people up to the danger the Bush Administration's assertions of unitary executive power have placed our Constitutional system of government.

For the past couple of weeks, they've just gotten blatant about it. The administration of George W. Bush is bound by no law, bound by no precedent, bound not even by the forms of democratic self-government, let alone its actual substance, which is being used as a throw-rug in John Yoo's den these days. They will torture and the Congress can do nothing. Their powers to spy, to search, and to seize are unlimited and Congress is not remotely entitled to know even what those powers are. They can imprison without trial. They can force corporations -- and, indeed, individuals within the government -- to violate the law. They are not subject to treaties. They are not subject to oversight, nor even subpoenas. Read this swill from yesterday. Through his actions, and from the mouths of his minions, George Bush is now claiming fully the powers of a tyrant, by any reasonable definition of the term.

This is the only issue in the presidential campaign. It is the only truly existential threat to the country. Everything else -- health care, climate change, campaign finance, the deficit -- mean nothing if we fail on this fundamental issue.

Who will defend the Constitution?

Harper's Scott Norton has an important post that seeks to put all we learned about the Bush Administration's use of torture -- and the convenient destruction of tapes showing that torture -- into context.

We should be very clear about this. The Kiriakous of the world are not blameless. But they are not much more than tools in the hands of those who drive the torture machine. Real moral and legal culpability lies with those in leadership positions who sanction and approve this system. The use of torture—waterboarding, hypothermia, long-time standing, and other extreme practices—is a criminal act. If the Justice Department has blessed it—and we now know this for a fact—then figures in the Justice Department, including the Attorney General, have made themselves accessories to a serious crime. Since the end of World War II at least, the use of these torture practices has been universally recognized as a criminal act subject to the most severe sanction.

This is not an academic argument. It goes beyond the political. These people have stained the honor of this nation--permanently--with their use and sanction of such practices.

Norton also reminds us that waterboarding has a long history:

This resurrects the process of official cruelty under the Stuart monarchs in seventeenth century England. Persons accused of state crimes very frequently were interrogated with the use of specific techniques, including the rack, the thumbscrew, and waterboarding. King James I personally described the process in The Kings Booke (1606). He would, on the advice of his officers, “approve no new torture,” but he would certainly avail himself of the existing practices. In ascending order of severity they were: thumbscrews, the rack and waterboarding. That’s right. Waterboarding was considered the most severe of the official forms of torture. Worse than the rack and thumbscrews.

This is the action that Republican Senator Kit Bond has compared to swimming strokes. That radical conservatives refuse to call torture.

These people need to be voted out of power.

That's the conclusion about the United States even our allies are reaching. Harper's Scott Norton examines the situation, including a Canadian court that makes a decision that would have been unthinkable before George W. Bush entered the White House. As Norton quotes Professor Jaya Ramji-Nogales:

In assessing the constitutionality of the agreement, the Canadian Court found that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture — specifically naming the Maher Arar case as an example of the United States’ failure to protect.

Crooks and Liars has several examples showing further evidence that the use of the taser is getting really out of hand.

Despite what people may believe, the taser is a potentially lethal weapon. It should not be used as a first resort to force compliance against people who are not dangerous.

One wonders why the supposedly democracy and freedom loving people in the Bush Administration do not understand that new technologies do not negate Constitutional protections. The Washington Post's Ellen Nakashima reports:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department's internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government's request, so it is difficult to know how often the orders are issued or denied. (emphasis added)

Of course it is. There's no need for the American people to know what their government is doing, or why it is not abiding by its own internal guidelines.

Harper's Scott Norton writes:

When the Founding Fathers looked for a model that reflected the abuses they objected to—in short what they intended to forbid by their new Constitution and Bill of Rights—they turned to an English institution, the Court of Star Chamber. It was a state security court with ancient roots which flourished under the Tudor and Stuart monarchs. The Star Chamber court operated in secrecy, was not bothered by the picky evidentiary rules that emerged in other courts, and did not believe that those appearing before it on state security charges had many rights—certainly not the right to counsel, nor even the right to conduct a defense. It relied very heavily on torture to extract the evidence it sought to convict, usually a confession—though rarely, of course, a confession with any validity, since the application of the rack would quickly get the subject to say whatever was desired, truthful or not.

Although scholars have been complimentary of the Star Chamber for its work on commercial matters, when politics was at issue, we see that it acted with little independence from the monarch. It was a tool for lashing the political opposition. And freethinkers were its particular victims. The mistreatment dealt to religious dissenters in particular, men like “Freeborn” John Lilburne and John Pym, caused the public to turn strongly against the Star Chamber and to demand its abolition. In the end, the Court of Star Chamber stood as an image for the tyrannical excesses of King Charles. And the American colonists, being overwhelmingly Roundheads, were among the loudest voices raised in opposition.

The Bush Administration is slowly introducing the Court of Star Chamber to the process of American justice. We see its elements everywhere. In the farcical Combat Status Review Tribunals created in Guantánamo, row repeatedly denounced even by judges serving on them as a travesty. In the Military Commissions, crafted in conscious avoidance of the standards both of American military and civilian justice. And in the steady press to lower the standards of our federal courts to introduce practices that continually tip the scales of justice in favor of prosecutors. Reports have begun to circulate that the Administration has put together a group of scholars headed by an right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year. As we see in the public pronouncements of the Bush Administration, accusations leveled at detainees in the war on terror are leveled for political effect, and often to parallel partisan political campaigns. If those accusations are rejected by a court, it therefore undermines confidence in the Administration and the Party. Which is why, in the Bush view of justice, a failure to convict is unacceptable. And which is why the Bush view of justice is no justice at all.

Why are we so accepting of the Bush-Cheney regime's assault on the Constitution? As noted in a previous post today, will we accept anything if it is wrapped in a "war on terror" package?

While you may not be able to reach the obvious conclusion that waterboarding is torture, perhaps you could take a few steps to show that the Michael Mukasey Justice Department is not going to continue being a political attachment to the president.

As Harper's Scott Horton explains, one easy step Mukasey could take is to fire Department of Justice press spokesman Brian Roehrkasse.

Here’s some cogent advice for Michael Mukasey. If he wants to demonstrate that he’s determined to do something to rebuild the reputation of the Department of Justice, he should start by issuing walking papers to some of the people who have done the most to destroy the Department’s reputation. And DOJ press spokesman Brian Roehrkasse must stand pretty much near the top of that list. Last week I had a discussion with some network media colleagues who are working on a story I have been covering heavily. At one point they relayed a series of statements from a DOJ spokesman. It must have been Brian Roehrkasse, I offered, because virtually every statement made was either a rank falsehood or a conscious distortion. And indeed, it was.

Roehrkasse has a well formed reputation with the media, namely, as a political hack and shameless dissembler.

Sen. Orrin Hatch defamed purged U.S. Attorney Carol Lam on last week's Meet the Press, saying:

“She was a former law professor, no prosecutorial experience, and the former campaign manager in Southern California for Clinton...”

Except, alas, nothing in that sentence is true. Nothing.

Air America Radio's Rachel Maddow has been trying all week to get Sen. Hatch to return her call about this issue -- to see if the Senator is willing to clear up this lie.

Unsurprisingly, Senator Hatch has been unwilling to do so.

Slate's Jack Shafer explains why a new round of reports about former Chief Justice William Rehnquist's drug addiction to Placidyl deserve our attention today:

The Rehnquist story deserves a third airing today if only to illustrate the ugly double standards that excuse extreme drug use by the powerful, especially if their connection is a prescribing doctor, and condemns to draconian prison terms the guy who purchases his drugs on the street. Reviewing Rehnquist's tale one more time also demonstrates the reluctance of the Senate—and some members of the press—to grade the mental competency of judges and judicial nominees.

Atrios catches the latest act, this time from our Supreme Court:

Typical Republican chickenhawk attacking a bronze star recipient:

Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.

I know the radical right has no shame, but this is beyond any line of decency. As Atrios says, we do not live in a just world.

Via Americablog, a quote that really deserves wide consideration:

"Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You didn't place your hand on the Constitution and swear to uphold the Bible."

- Jamie Raskin, testifying Wednesday, March 1, 2006 before the Maryland Senate Judicial Proceedings Committee in response to a question from Republican Senator Nancy Jacobs about whether marriage discrimination against gay people is required by "God's Law."

The more we learn about Samuel Alito's beliefs, the more I fear for the future of our Republic should he be confirmed.

The man is a true radical -- in favor of presidential power. Checks and balances and oversight are things he would causually toss in the Constitutional dumpster.

The New York Times editorializes about two recent Alito memos that should give people great pause about whether he really should be given a spot on the Supreme Court:

One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans. Judge Alito argued for taking a step-by-step approach to establishing this principle, much as he argued for an incremental approach to reversing Roe v. Wade in another memo.

The Supreme Court flatly rejected Judge Alito's view of the law. In a 1985 ruling, the court rightly concluded that if the attorney general had the sort of immunity Judge Alito favored, it would be an invitation to deny people their constitutional rights.

In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a "signing statement" about what the law means. By doing so, Judge Alito hoped the president could shift courts' focus away from "legislative intent" - a well-established part of interpreting the meaning of a statute - toward what he called "the President's intent."

Where the hell does that come in to our Constitutional process? Hell, why bother with a legislative branch at all?

Executive branch officials have immunity. The president's intent trumps legislative intent.

That's not a Republic. And I do not want a Republican, Democratic, or other-party president from having anywhere near the powers Alito proposes the executive should have.

He needs to be kept off the Supreme Court.

And you can see just how upset they are at WithdrawMiers.org.

Based on the list of people and organizations being compiled at this web site, the president seems to have a growing problem along his right flank.