Ballots and the Bench: The Iowa Judges

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In a devastating night for Democrats, there was a notable and disturbing loss that did not draw enough attention, that of the so called “Iowa Judges”. From NPR:

Iowa voters decided to remove three State Supreme Court justices who’d overturned an Iowa ban on same sex marriage last year. Out are Iowa Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. The full seven member panel unanimously rejected the law but not all members faced a retention vote.

No, not all seven Iowa Supreme Court judges were removed, but of the only three that were up for retention votes, all were ousted. Last year, all seven members of the Iowa Supreme Court voted unanimously to overturn the Iowa law restricting marriage to between a man and a woman as violative of the constitutional right of equal protection. The conservative effort to remove the judges who had the courage to protect equality under the Constitution was an astounding result in what are normally perfunctory state judicial retention votes. So perfunctory, in fact, that no Supreme Court justice had ever been removed in Iowa since the advent of the retention vote system in 1962.

The effort to oust the Iowa Judges was heavily financed, to the tune of approximately a combined million dollars, by aggressive national anti-marriage equality groups such as the American Family Association. The Campaign for Working Families and the Washington-based Family Research Council, as well as a plethora of local fundamentalist and religious groups in Iowa.

Sadly, this is probably one of the least discussed, yet most pernicious, aspects of monetary influence in political campaigns in the wake of the much discussed Citizens United decision by the US Supreme Court. Although judicial retention elections, being non-partisan in nature, were not directly affected by the Citizens United decision to the degree normal partisan elections were, the sheer scope of large money injected will clearly have an increasing impact on them, as will this remarkable result in Iowa.

Courtrooms, especially those of the appellate level, should be places where constitutions, both state and federal, reign supreme and the rights of all citizens are respected and protected without regard to the vagaries and whims of interst groups and fundamentalist bigots of any striping. The wild success of the conservative effort to remove the Iowa Judges signals a disturbing trend in the wrong direction.

Obama and the Constitutionality of DADT and Other LGBT Discrimination

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After nearly two years of ignoring, scorning, demeaning and lecturing the progressive blogosphere that provided substantial and critical portions of the fuel propelling him into office, President Obama suddenly found time to sit down with five carefully chosen token representatives of the unwashed dirty hippy community five days before the coming mid-term election. An election increasingly looking quite catastrophic to his own Democratic party, and due in large part to his performance and policy selection in office. How thoughtful of Mr. Obama to finally have a dialect with his base now that he is desperate and less than a week out from the electoral tsunami.

Courtesy of Duncan Black (Atrios), one of the participants, here is a transcript of the festivities. You can draw your own conclusions as to how large of a dog and pony show this was, but I would like to focus on the portions of the meeting dealing with LGBT discrimination and the government’s relentless DADT policy.

Asked by Joe Sudbay of Americablog whether he actually had any real plan to accomplish passage of repeal legislation for DADT, Obama responded:

…And my hope is that will culminate in getting this thing overturned before the end of the year.

Now, as usual, I need 60 votes. So I think that, Joe, the folks that you need to be having a really good conversation with — and I had that conversation with them directly yesterday, but you may have more influence than I do — is making sure that all those Log Cabin Republicans who helped to finance this lawsuit and who feel about this issue so passionately are working the handful of Republicans that we need to get this thing done.

….

You’re financing a very successful, very effective legal strategy, and yet the only really thing you need to do is make sure that we get two to five Republican votes in the Senate.

And I said directly to the Log Cabin Republican who was here yesterday, I said, that can’t be that hard. Get me those votes.

Asked to describe his plan to pass critical legislation he has long promised one of his core constituencies, this is the pathetic drivel Barack Obama comes up with? The President of the United States and leader of the entire Democratic party pleads powerlessness to accomplish the goal, but demands the Log Cabin Republicans go forth and deliver him intransigent GOP Senators on a golden platter? Seriously, that is his plan? Perhaps Mr. Obama has mistaken the LCRs for the NRA or something, but if there is any entity with less sway over the entrenched and gilded GOP Senate leadership than Obama, it is the Log Cabin Republicans. Absurd and lame is too kind of a description for such tripe. I honestly don’t know what is worse, that this is Obama’s response or that he has the politically incompetence to state it on the record.

But there was more, oh yes there was more. Asked by Sudbay the straightforward yes or no question as to whether he considered DADT to be unconstitutional, the self proclaimed “Constitutional scholar” President came up with the following bucket of blarney:

And one of the things I’d like to ask you — and I think it’s a simple yes or no question too — is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on Read more →

Should Elena Kagan Really Be Getting Shooting Lessons from the Koch-Addled Hunting Buddy of the Guy Who Shoots People in the Face?

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I admit I’m no big fan of Elena Kagan. But tell me whether I’m justified in worrying about this?

Data point 1: On at least one occasion, Antonin Scalia participated in the Koch brothers’ secret sessions plotting to advance the Koch agenda.

Data point 2: Antonin Scalia is hunting buddies with Dick Cheney.

Data point 3: Dick Cheney has been known to “accidentally” shoot his hunting partners in the face.

Data point 4: Scalia and Kagan are spending lunches shooting skeet together.

I always thought one of Kagan’s strongest qualities was her instinct for self-preservation. But going shooting with Cheney’s hunting buddy sure seems to violate every principle of self-preservation.

When Did Clarence Thomas Go to the Koch Conspiracy Fest? And Did He Bring Ginni?

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As you’ve no doubt heard, the right wing conspiracy does exist. As the NYT reported the other day, the Koch brothers host semi-annual secret get-togethers to strategize with other rich conservatives and media people about how to advance their views.

The participants in Aspen dined under the stars at the top of the gondola run on Aspen Mountain, and listened to Glenn Beck of Fox News in a session titled, “Is America on the Road to Serfdom?” (The title refers to a classic of Austrian economic thought that informs libertarian ideology, popularized by Mr. Beck on his show.)The participants included some of the nation’s wealthiest families and biggest names in finance: private equity and hedge fund executives like John Childs, Cliff Asness, Steve Schwarzman and Ken Griffin; Phil Anschutz, the entertainment and media mogul ranked by Forbes as the 34th-richest person in the country; Rich DeVos, the co-founder of Amway; Steve Bechtel of the giant construction firm; and Kenneth Langone of Home Depot.

Sure, we’ve known that rich people work like this for a while; this report simply provides documentation of it.

But one detail of the NYT report deserves further scrutiny: the report that Clarence Thomas and Antonin Scalia have attended the gathering.

To encourage new participants, Mr. Koch offers to waive the $1,500 registration fee. And he notes that previous guests have included Justices Antonin Scalia and Clarence Thomas of the Supreme Court, Gov. Haley Barbour and Gov. Bobby Jindal, Senators Jim DeMint and Tom Coburn, and Representatives Mike Pence, Tom Price and Paul D. Ryan. [my emphasis]

Again, it’s not a surprise that the guy who duck-hunted with Dick Cheney while reviewing a suit involving the Vice President would hang around with the conservative elite.

But the report raises a whole slew of questions.

Think Progress has an important post looking at how Scalia and Thomas have been instrumental in loosening campaign finance regulations, which has made it a lot easier for people like the Kochs to buy elections.

But Scalia and Thomas have been involved in more than just rulings that make it easier for the Kochs to win election.

After all, they once cast two of the only nine votes to matter in the 2000 Presidential election.

They’ve not only issued rulings that make it easier for conservatives to win elections, they’ve decided an election. And one of the most obvious explanations for why Thomas and Scalia have attended at least one of these secret shindigs but not Sam Alito or John Roberts would be if they attended before the latter two were SCOTUS Justices. You know, back before Thomas and Scalia selected a President.

So did Thomas and Scalia attend a meeting strategizing how to win elections before the decided one?

And then there’s the other question: whether Ginni Thomas, the founder of an organization that bridges mainstream conservatives with the TeaBagger movement, attended the gathering.

The invitation from this year’s shindig shows that most attendees bring their spouses. So if Thomas followed the norm, then Ginni would have attended with him. Which would put Ginni Thomas, now a big player in the TeaBagger movement, at an event hosted by the guys who are bankrolling the TeaBagger movement.

The Koch brothers would already be leading candidates to be funding Liberty Central. The Koch brothers would already be leading candidates to be the source of the $500,000 or $50,000 donations from undisclosed individuals to Liberty Central. The Koch brothers–and their funding of TeaBagger activities–have been central in opposing the health care reform that Liberty Central has called unconstitutional.

But it would be very neat if the Koch brothers recruited Ginni Thomas to front this group at their secret cabal meeting, wouldn’t it?

Obama DOJ Moves 9th Circuit To Stay DADT Ban

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Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than Read more →

Judge Phillips’ DADT Order Is Not The Victory Being Claimed

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As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was Read more →

Key Prosecution Witness Excluded Over Torture In New York Terror Trial

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Last Friday, I reminded the clueless media, and thus mostly uninformed public, there was a critical terror trial going on right in their midst in New York City, and doing so quietly and competently as was claimed was impossible by howlers such as Liz and Dick Cheney, Guiliani, Lindsey Graham and the right wing noise machine. The case is US v. Ahmed Khalfan Ghailani, and as I explained, although jury selection was well under way, there was a brief delay imposed by the trial judge, SDNY Judge Lewis Kaplan, until today so he could contemplate a motion to exclude a critical prosecution witness argued by the defense on the grounds the putative testimony was the product of torture and coercion.

The decision by Judge Kaplan was just issued and, in somewhat of a shock, he has ordered the witness, Hussein Abebe, excluded. From Bloomberg News:

A judge barred the U.S. from calling as a witness a Tanzanian miner who admits supplying explosives to Ahmed Ghailani, an alleged al-Qaeda terrorist charged with the 1998 bombing of the U.S. embassies in Africa.

U.S. District Judge Lewis Kaplan, in New York, denied a request by federal prosecutors to allow Hussein Abebe to testify that he sold five crates of dynamite to Ghailani before the blast. Abebe, whom prosecutors called a “giant” witness in their case, would provide a first-hand account of Ghailani’s role in the attacks, the government said.

Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.

“The court has not reached this conclusion lightly,” Kaplan wrote. “It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.”

This is a critical ruling and, while it should not be this way, a refreshingly positive one for the health and sanctity of the Constitution and federal Article III courts. Hats off to Judge Kaplan, for while the legal basis seems quite clear on its face, the blowback pressure from the government and boogity boogity terrorism howlers described above (not to mention the Old Gluehorse McCain) will be intense. Here is the critical language from Kaplan’s order:

Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has Read more →

Military Encroachment On Civilian Authority & Seven Days In May

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Via Digby comes this unsettling article by David Wood in Politics Daily about the growing militant contempt among military leadership for civilian authority and control.

The military officer corps is rumbling with dissatisfaction and dissent, and there are suggestions from some that if officers disagree with policy decisions by Congress and the White House, they should vigorously resist.

Officers have a moral responsibility, some argue, to sway a policy debate by going public with their objections or leaking information to the media, and even to sabotage policy decisions by deliberate foot-dragging.

This could spell trouble ahead as Washington grapples with at least two highly contentious issues: changing the policy on gays and lesbians in the military, and extricating U.S. forces from Afghanistan. In both cases, senior officers already have disagreed sharply and publicly with Defense Secretary Robert Gates and President Barack Obama, and in some cases officers have leaked documents to bolster their case.

…..

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral,” writes Marine Lt. Col. Andrew R. Milburn in Joint Forces Quarterly, an official journal published by the National Defense University under the aegis of the chairman of the Joint Chiefs of Staff.

That is especially true if his civilian leaders are incompetent, writes Milburn, who currently is assigned to the U.S. Special Operations Command in Stuttgart, Germany.

….

“When the results of bad decision-making are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution — the electoral voice of the people, Congress, or the Supreme Court — are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion,” Milburn writes.

Read the entire article; please.

Now, there is no sense of any direct coup type of trend afoot in all this so much as an accelerating trend to the militarization of government and resigned acceptance by the Read more →

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

Read more →

First Gitmo Habeas Case Makes Way To SCOTUS

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In March of this year, Marcy reported about a Center for Constitutional Rights (CCR) petition to the Supreme Court on behalf of Guantanamo Lawyer Thomas Wilner and cited the CCR press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

Yesterday, the petition for cert on behalf of Tom Wilner was denied on the Court’s traditional First Monday announcements.

But the story will not end there for Tom Wilner in this nascent Supreme Court term, in a move that will prove ultimately much more significant than the somewhat weak FOIA case CCR was pursuing, Wilner has petitioned for cert on the Habeas case of his client Fawzi al-Odah. This will be a critical test to see how the Supremes are going to deal with the progeny of their decision in Boumediene v. Bush.

From Andy Worthington:

Last week, two years and three months after the US Supreme Court granted the prisoners held at Guantánamo constitutionally guaranteed habeas corpus rights in Boumediene v. Bush, Fawzi al-Odah, a Kuwaiti prisoner held for nearly nine years, became the first prisoner to appeal to the Supreme Court “to protest federal court interpretations of detainees’ right to contest their detention,” as AFP described it.

Over the last two years, the prisoners have won 38 out of the 55 cases in which the District Court judges in Washington D.C. have made a ruling, but al-Odah is one of the 17 whose appeals have been denied. As I reported when he lost his petition in August 2009:

….

Although the burden of proof is on the government in the habeas cases, the “preponderance of evidence” standard is considerably lower than in criminal cases, for example, where a case must be established beyond reasonable doubt. However, the Circuit Court dismissed al-Odah’s complaint “under binding precedent in this circuit,” and also dismissed his complaint about the use of hearsay evidence, pointing out that the use of hearsay evidence had been approved by the Supreme Court in Hamdi v. Rumsfeld, the 2004 case that approved the detention of prisoners under the Authorization for Use of Military Force, the legislation passed by Congress the week after the 9/11 attacks, which authorized (and still authorizes) the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them).

….

In his petition to the Supreme Court, al-Odah argues that the courts have “applied a burden of proof lower than any ever approved by this Court in a case involving prolonged imprisonment, allowing the government to justify indefinite detention by a mere preponderance of the evidence, rather than by clear and convincing evidence.” He also argues that “both the District Court and the Court of Appeals have … allowed the indiscriminate admission of hearsay, denying the detainees any meaningful opportunity to test the reliability of statements made against them.”

Here is the official Petition for Certiorari in al-Odah. al-Odah will be an important bellwether to see if the Court accepts cert and, if so, what they do with the case.