Sotomayor Confirmation Hearings, Day 2, Part III

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Picking up from Christy’s earlier posts (Part I and Part II).

Leahy: If I have to work for a living I want to be a photographer. Phone rings, mom, don’t you ever say that they’ll think you don’t work.

Grassley up.

Grassley: Questions about individual property rights and how they’re protected by Constitution. Big difference between developed and developing countries and it’s because of respect for private prooperty. Important for Ag interests. I’m sure ordinary Americans besides economic interests concerned about where you stand. Kelo. Your understanding of state of 5th Amendment Takings clause?

SS: Share you view of importance of property rights.  Corporate lawyer. Not difference between developed and underdeveloped countries, invest in US bc of respect for property rights. WRT Kelo, issue is whether or not state who had determined there was a public purpose to takings. Can you contract with private developer to effect the public purpose. 

Grassley: Public use. Kelo, public purpose. Is public use and public purpose the same thing?

SS: Courts precedents over time. Two informed each other. 

Grassley: Everyone believes it was an expansion.

SS: Many litigants expressed that view. Question of whether SCOTUS overstepped Constitution, the Court believed and explained why it thought not. 

Grassley: I was going to ask whether Kelo undermines property rights.

SS: Only say in context to that case, it is the Court’s holding, entitled to stare decisis. 

Grassley: Does the Constitution allow takings with no compensation.

SS: Well, takings is complex.

Grassley: Would you strike down taking that provided no compensation at all?

SS: If taking violates Constitution, I’d be required to strike it down.

Grassley Didden. Chain drug store. 

SS: Right to day in court important one, right to require that you come to court in timely fashion.

[SS trying really hard to explain to Grassley what a statute of limitation is.]

Grassley: Regardless of statute of limitations why not publish opinion.

SS: Kelo didn’t govern. Statute of limitations did.

Grassley: EPA could not use cost/benefit. Clean Water Act, EPA had to use best technology even when upgrades were cost prohibitive. Agency interpretation entitled to deference. Do you find EPA shouldn’t be able to use cost-benefit analysis.

Feingold: Enjoying listening to you. So when you consider cameras in the court room.

SS: You were a very good lawyer.

Feingold: Executive power. 2003 Law school, issues since 9/11. How people found common threads as Americans, hard to imagine something positive could come out of it, coming together as community, we’d all help each other get through this. In Read more →

Yoo Lawyers Up for a Shot at the 9th

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The 9th, John Yoo? You really think the 9th Circuit is gonna be more sympathetic to your cause than the judge who already ruled Padilla can sue you? (h/t fatster)

Former Bush administration lawyer John Yoo will appeal a federal judge’s ruling that allowed a prisoner to sue him for devising the legal theories that led to his alleged torture, Yoo’s attorneys said today.

President Obama’s Justice Department, which represented Yoo in unsuccessfully seeking dismissal of the suit, filed a notice saying he would ask the Ninth U.S. Circuit Court of Appeals in San Francisco to intervene in the case. Department attorneys also said they were dropping out of the case and that Yoo was now represented by a private lawyer, not identified in the court document.

Well, I guess you gotta go through the 9th to get to Scalia and Alito…

Enter your vote below for which private lawyer Yoo has retained to try to save his rear end.

On The Eve Of Sotomayor: Ricci Is Irrelevant

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Tomorrow, Monday morning July 13, 2009, Judge Sonia Sotomayor begins the hearing portion of her confirmation process. So far, there has been the expected (sadly) partisan yammering on her nomination. Then, on Friday, there suddenly emerged something that might seem to take hold as the focus of the obligatory partisan sniping. Frank Ricci. It came from Dahlia Lithwick at Slate:

Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men. This is the narrative we will hear next week, but it somewhat oversimplifies Ricci’s actual employment story. For instance, it’s not precisely true, as this one account would have it, that Frank Ricci "never once [sought] special treatment for his dyslexia challenge." In point of fact, Ricci sued over it.

According to local newspapers, Ricci filed his first lawsuit against the city of New Haven in 1995, at the ripe old age of 20, for failing to hire him as a firefighter. That January, the Hartford Chronicle reported that Ricci sued, saying "he was not hired because he is dyslexic." The complaint in that suit, filed in federal court, alleged that the city’s failure to hire Ricci because of his dyslexia violated the Americans with Disabilities Act. Frank Ricci was one of 795 candidates interviewed for 40 jobs. According to his complaint, the reason he was not hired was that he disclosed his dyslexia in an interview. That case was settled in 1997 with a confidential settlement in which Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney’s fees.

In 1998, Ricci was talking about filing lawsuits again, this time over a dispute with his new employer, Middletown’s South Fire District—which had hired him in August of 1997. According to a Hartford Courant report of Aug. 11, 1998, Ricci was dismissed from the Middletown fire department after only eight months. He promptly appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department’s response to a controversial fire. A story in the Hartford Courant dated Aug. 9, 1997, has Ricci vowing "to pursue this to the fullest extent of the law."

From that already tangential report by Lithwick, has come the claptrapping by those wanting to buck up the Sotomayor nomination, unfortunately by mostly liberal voices, Read more →

Ambinder on Holder

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There’s enough new reporting in this Ambinder piece (commenting on this Klaidman piece covered in this post) that it merits its own post.

First, there’s this description of the division of labor among Obama’s top lawyers.

When Obama asked Holder, a longtime friend, to become attorney general, Holder extracted a promise — perhaps extracted is too tough of a term because Obama readily agreed — that the White House would not interfere with the Department’s decisions about whether to launch investigations, according to two people with knowledge of the encounter. When it comes to setting and refining judicial policy, the White House counsel’s office plays the lead role. But Holder and his deputies get to decide whom to prosecute.

Now, I’m suspicious of Holder, but loathe all I know of Greg Craig, so this sparked my concern. I’m really curious, you lawyer types … Is it normal for the White House Counsel to "set and refine judicial policy"? Has Holder really become nothing but a glorified mega-prosecutor? (I can understand why he extracted this policy, having seconded Janet Reno, but still.)

And then there’s this loaded passage.

On the one hand, it is tough to see a prosecutor being given a mandate to determine whether former Vice President Dick Cheney ordered CIA officials to not brief Congress on a highly sensitive, classified intelligence collection program given the very real chance that the national security damage resulting from the disclosure of information about the program might be significant.

Nonetheless, it’s doubtful that Holder would lean into a decision in such a public way unless he was ready to consider an option that may well have significant ramifications for the country and lay a strong precedent for future administrations.

Since the beginning of his presidential transition, Obama has been counseled by his attorneys that any such investigation is likely to be incomplete, resulting in people being charged with sins they participated it but did not originate. Even senior Justice Department officials admit that the possibility of an elected White House decision-maker like the Vice President being charged with a crime is remote.  Obama would rather not see middle managers prosecuted for decisions, or crimes, of elected officials or senior political appointees. And he is very concerned with precedent.  But this will not be his decision to make.

I’m not entirely sure what that middle paragraph means. But I’m curious by the third and the first.

Everyone–everyone–seems to know Read more →

Final Decision: The Dignity Of Judge Karen Williams

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Federal judges, whether liberal or conservative – from Reggie Walton on Libby to Vaughn Walker on al-Haramain and the consolidated wiretapping cases in NDCA to the Republican appointees finally giving Guantanamo detainees Habeas consideration to the Supreme Court Justices that were the only check whatsoever on the unitary power grab of the Bush/Cheney brigade – live and serve in mostly quiet and unappreciated dignity.

That is certainly the case with Fourth Circuit Judge Karen Williams:

Karen Williams of South Carolina, the first female chief judge on the U.S. Court of Appeals for the 4th Circuit, stepped down this week shortly after learning that she was in the early stages of Alzheimer’s disease, according to her family. Alzheimer’s, for which there is no cure, can cause mental deterioration and memory loss. Williams is 57 years old.

The 4th Circuit, an influential voice on national security issues, hears cases from Virginia, Maryland, West Virginia and the Carolinas. Earlier vacancies have whittled away its strong Republican majority, and the court now has five judges appointed by Republican presidents and five appointed by Democrats. Williams’s departure creates a fifth vacancy, so the court could gain a 10 to 5 Democratic majority during Obama’s term.
…
Williams’s eldest daughter, Marian Scalise, 39, said yesterday that her mother made a wrenching decision to leave a job she loves but did so promptly after her diagnosis to make sure she retired before any of her opinions could be questioned.

"The court has always been in her life. She has always loved the court, and serving the citizens, and making sure her opinions were correct as far as the law is concerned," Scalise said. "It’s so difficult for her to step away from that.

I had never heard of Judge Williams before tonight, and what seems to be her most famous decision, Dickerson v. United States, I take profound issue with. Heck, even the Rehnquist court, with Rehnquist himself writing the opinion, took issue with it and reversed Williams. That said, my hat is off to Judge Williams for making the call to retire quickly and completely. This is a terrible diagnosis the judge has received, the decision must have been brutal, but Williams appears to have not flinched and looks to have removed herself before she put decisions in serious jeopardy. And, yes, judges with lifetime tenure often do hang on when they have no business whatsoever being there.

Williams’ sudden Read more →

Stunning al-Haramain Filing Shames Obama; Shows Duplicity Of Officials

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In early June, a critical hearing was held in front of Judge Vaughn Walker in the al-Haramain warrantless wiretapping case. As a result of that hearing, Judge Walker entered an order commanding the attorney for plaintiffs al-Haramain et. al to file a motion for summary judgement. Hot off the press, the motion was filed minutes ago, and it is a stunning demonstration of just how disingenuous and two faced President Obama and his administration have been on the seminal issues of warrantless wiretapping, protection of Constitutional rights, transparency and accountability.

The first words in the main body of the motion are a stark reminder to President Obama and Attorney General Eric Holder of the very words and promises they have spoken in the past on the issue of illegal wiretapping:

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”
President Barack Obama, December 20, 2007

“We owe the American people a reckoning.”
Attorney General Eric Holder, June 13, 2008

Apparently those words only were operative during the election, because that sure is not what Obama and Holder are saying and doing now. Instead, in pretty much as big of a Constitutional about face as is imaginable, Obama has decided to turn his back on his words and promises and throw his lot in with Bush and Cheney by asserting state secrets to protect the government from inquiry and accountability on its illegal and unconstitutional acts. It is not radical left wing bloggers saying that, it is distinguished US Senator Russell Feingold:

Of State Secrets, he said the Administration’s repeated assertion of State Secrets in litigation was reminiscent of the Bush Administration. He alluded to the cases before Vaughn Walker, and complained that the invocation of State Secrets would prevent Americans from finding out what really went on with the warrantless wiretap program

Senator Feingold is exactly right in his quote. The Ninth Circuit Court of Appeals has also slapped Obama hard on his continuation of the Bush/Cheney policy. And lest there be any illusion that Bush wiretapping program was legal, the following uncontroverted facts from the motion for summary judgment dispatch that notion:

On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22, 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney General James B. Comey made the following statements demonstrating that defendants knew the warrantless surveillance program was unlawful yet continued it for several weeks in 2004 without the DOJ’s approval:

• As of early March of 2004, Comey and Attorney Read more →

You Think Alberto Gonzales Knows There’s Not a “Department of Law”?

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Let’s hope so, because Texas Tech just hired Gonzales to teach what appears to be a PoliSci course. (h/t Wonkette)

Alberto Gonzales, who resigned as the Bush administration’s embattled attorney general nearly two years ago, has lined up a fall-semester teaching spot at Texas Tech University, the university confirmed today.

Gonzales, who was Gov. George W. Bush’s lawyer and Texas secretary of state before joining Bush in Washington, will be working in the university’s political science department, teaching a “special topics” course on contemporary issues in the executive branch, according to Dora Rodriguez, a senior business assistant in the department.

Maybe Sarah Palin can use her soon-to-be-abundant free time and go learn how the guy running the Department of Law can protect the President from any legal consequences for his actions.

One important detail: note that Texas Tech is not employing AGAG to teach law. I guess in this day and age, even Texas schools want to avoid having John Yoo problems.

Tortured To Death

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graphic by PirateCat

graphic by PirateCat

As Spencer Ackerman informs, the long awaited IG Report will be a little longer awaited, and will not be released today. Could be tomorrow, could be next week; what a shocker.

In the meantime, and in keeping with our coordinated push with the ACLU Accountability Project, I would like to draw attention to an article Andy Worthington has out today:

On Friday, I also wrote an article about torture for the ACLU’s Accountability Project, explaining how the hunger strikers at Guantánamo are part of the same torture machine — and, moreover, one that, unnervingly, is still operating today — but as a contribution to the specific topic of demonstrating to the US public, and the wider world, that torture techniques implemented by the Bush administration led to murders in US custody, I’m presenting below some relevant sections from my book The Guantánamo Files, from testimony provided by former prisoner Omar Deghayes, and from a recent report by investigator John Sifton, relating to ten murders in US prisons in Afghanistan, three of which, to the best of my knowledge, have never been investigated at all.

Following the outline proposed by Glenn Greenwald above, some of these murders may have involved a few “rogue” actions, but in general it’s clear that they followed methods authorized at the highest levels of the Bush White House — or variations introduced in a context where limits on abusive behavior had been reduced or eliminated, ostensibly to facilitate interrogation.

The prelude to two notorious murders — and, very possibly, three others — in the US prison at Bagram airbase began in the summer of 2002, when 14 soldiers from the 525th Military Intelligence Brigade at Fort Bragg arrived at the prison, led by Lt. Carolyn Wood, and were soon joined by six Arabic-speaking reservists from the Utah National Guard. Lt. Wood took over interrogations from a team led by an interrogator who later wrote a book about his experiences, The Interrogators, using the pseudonym Chris Mackey. This is how I described what happened next in The Guantánamo Files.

Please, go read the entire article, Andy lays out the case on ten murders in US custody in Afghanistan, taken mostly from his book "The Guantanamo Files," but also including testimony by released Guantanamo prisoner Omar Deghayes and research by John Sifton. It is a damning read.

Marcy is in transit back from New York and I have a couple Read more →

On The Rule Of Law And Crimes Of Torture

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graphic by csb.dk

graphic by csb.dk

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.

And thus was stated by Plato the general theory underlying what we have come to know and understand as the "Rule of Law". Plato’s student and protege, Aristotle, refined the thought:

Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.

In American, and modern anglo-saxon iterations, there is no one set of constructs defining the "Rule of Law", but there are universal elements common to all. They have been generally identified as follows:

1) a government bound by and ruled by law;
2) equality before the law;
3) the establishment of law and order;
4) the efficient and predictable application of justice; and
5) the protection of human rights.

There are other lists as well. Political/legal theorist Joseph Raz has promulgated the following factors:

* That laws should be prospective rather than retroactive.
* Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
* There should be clear rules and procedures for making laws.
* The independence of the judiciary has to be guaranteed.
* The principles of natural justice should be Read more →

Bush Officials Compromised Renzi Investigation for Political Gain

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In an important new article from Murray Waas, writing at The Hill, we have at long last fresh news on the Rick Renzi corruption case in Arizona, and it turns out that officials in the Bush Administration improperly leaked out information compromising the investigation of Renzi, and did so for sheer political gain immediately prior to the 2006 elections.

In the fall of 2006, one day after the Justice Department granted permission to a U.S. attorney to place a wiretap on a Republican congressman suspected of corruption, existence of the investigation was leaked to the press — not only compromising the sensitive criminal probe but tipping the lawmaker off to the wiretap.

Career federal law enforcement officials who worked directly on a probe of former Rep. Rick Renzi (R-Ariz.) said they believe that word of the investigation was leaked by senior Bush administration political appointees in the Justice Department in an improper and perhaps illegal effort to affect the outcome of an election.

At the time of the leak, Renzi was locked in a razor-thin bid for reelection and unconfirmed reports of a criminal probe could have become politically damaging. The leaked stories — appearing 10 days before the election — falsely suggested that the investigation of Renzi was in its initial stages and unlikely to lead to criminal charges.

As you will recall, Renzi’s indictment (or lack thereof at the time) was a critical prong in the greater US Attorney firing scandal, specifically as to Arizona US Attorney Paul Charlton.

Murray is right, the import of this is not merely the implications on Arizona and the loss of a really good US Attorney (and as a practitioner in Arizona I can tell you that Paul Charlton had universal respect from both sides of the political aisle, prosecutors, the defense bar and the judiciary). The really notable point here is that it permitted Renzi to circle his wagons, and falsely inferred right before the 2006 election that Renzi was clean enough to be reelected.

Despite the fervent claims of the Bush crowd to the contrary, this was gross politicization of the Justice process, and it worked.

This previously unreported episode, however, directly contradicts that claim and constitutes the first evidence that a political-corruption investigation was stymied for political reasons during the Bush administration.

As part of an apparent damage-control effort to assist Renzi’s reelection bid, information was leaked on the same day to three Read more →