Category: Civil Liberties

To live inside the law, you must be honest.

“In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5.“

With great lawyers, you have discussed lepers and crooks: By way of Ted at the Late Adopter, the NYT examines Chief Justice Roberts’ use of Dylan in court opinions. “Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court…The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company.”

The Court: Show us the Bodies.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing.” In a setback for the Dubya administration and a victory for the American way of life, the Supreme Court grants habeas corpus rights to Guantanamo detainees. (The decision in Boumediene v. Bush is now the fourth time the Court has reaffirmed the rule of law over Dubya’s monarchial anti-terror policies.)

In vicious dissent, the conservative bloc: Roberts, Scalia, Thomas, and Alito, with Scalia in particular scowling and ranting like a Batman villain. “‘America is at war with radical Islamists,’ he wrote, adding that the decision ‘will almost certainly cause more Americans to be killed.’ He went on to say: ‘The Nation will live to regret what the court has done today.’” To which I say, “Get over it.” I highly doubt we’ll regret it as much as your being put on the Court in the first place, Justice Scalia.

Great Borah’s Ghost!

A busy day traffic-wise here at GitM: In a speech before the Knesset today, Dubya compared Obama to Sen. William Borah of Idaho (and not in complimentary fashion, although that case could be made too.) Here’s GWB: “Some seem to believe we should negotiate with terrorists and radicals, as if some ingenious argument will persuade them they have been wrong all along. We have heard this foolish delusion before. As Nazi tanks crossed into Poland in 1939, an American senator declared: ‘Lord, if only I could have talked to Hitler, all of this might have been avoided.’ We have an obligation to call this what it is –- the false comfort of appeasement, which has been repeatedly discredited by history.“

Now, as it turns out, Sen. Borah was the subject of my undergraduate thesis and features prominently in my dissertation. So, notwithstanding the self-serving idiocy and sad invoking of Godwin’s Law in Dubya’s words, I do want to take a moment to defend Sen. Borah, before — just as Philip Roth Cheneyed up Burton Wheeler — he disappears down the memory hole and is reinvented as simply a kneejerk reactionary. (I know Dubya brought him up to bash as a weak-kneed surrender-monkey, but I’ve also read several left-leaning comments out and about today that make note that Borah was a Republican, and thus belongs in Dubya’s camp. He really doesn’t.)

However wrong he was about Hitler in his final years, and obviously he was very, very wrong (although not perhaps as wrong as George Prescott Bush), Sen. Borah is neither the apostle of appeasement nor the GOP stooge that Dubya and folks pushing back would respectively make him out to be today. With La Follette and Johnson, Borah was one of the leading progressives in the Senate for decades, and one of its strongest civil liberties advocates in the years after World War I. In fact, if Dubya wants to ponder aloud the words of Borah, may I suggest the following?

  • “It may seem incredible to many, but to me the most vital problem in American politics at the present time is the preservation of the great guarantees of civil liberty, found in our constitution, and so long supposed to be secure and indispensable…One of the most common traits of the political pharisees – the man who is always professing great devotion to the Constitution and always betraying it, or disregarding it – is that of constantly expressing the fear that the people may have their minds poisoned by false doctrines.” – Borah to the American Legion, 1921.

  • “Everybody is in favor of the Constitution when it favors them, but too many are willing to trample upon it when it gets in their way. The war disclosed that the great principles and guarantees of the Constitution are vital to a free people and at the same time are easily disregarded in an hour of passion or crisis.” — Borah to S.S. Bailey, 1921.

  • “I have no use for the ‘reds,’ nor for the lawless nor for the anarchists, but I have infinitely more respect for the man who stands out and is willing to suffer and sacrifice for his cause than for the miserable hypocrite who professes to be an American and is at the same time perfectly willing that every guarantee in the Constitution shall be trampelled under foot.

    The men who are destroying American institutions and who are a menace to American principles are not the ‘reds,’ nor the anarchistic…but rather the men who, professing like Augustus the Great, to preserve our Constitution, are subtly and with sinister and selfish purposes, undermining them.” — Borah to Frank Morrison, 1921.

    But, civil liberties aside, what should we take from Sen. Borah’s unfortunate remarks about Hitler (which he made at the age of 75, less than a year before his death?) Well, to me, it might suggest that age can cloud the judgement of all of us, even long-standing Senate mavericks much-beloved by the media. It’s just a good thing that ancient, venerable lion of the Senate didn’t win the election of 1936, eh?

    • Yoo must be joking. | SSDAG.

    “Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion,” said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.” (Nor, apparently, does the Fourth Amendment apply.) An unsettling memorandum by Dubya stooge John Yoo which advocates both dictatorial rule and the legality of torture is released to the public, five years later. “‘The whole point of the memo is obviously to nullify every possible legal restraint on the president’s wartime authority,’ Jaffer said. ‘The memo was meant to allow torture, and that’s exactly what it did.‘”

    More than anything, I’m reminded of Lincoln’s remarks to the Indiana fourteenth: “‘Whenever I hear anyone arguing over slavery, I feel a strong impulse to see it tried on him personally.’“

    And, just in case anyone was under the impression that this sort of thing only happened in the dark days of 2003, witness Attorney General Mukasey last week getting publicly verklempt and making up 9/11 tales as he goes along, all to help preserve the NSA’s warrantless wiretaps. At this point, Chuck Schumer has a lot to answer for.

    Breathing is for Closers.

    We’re adding a little something to this month’s sales contest. As you all know, first prize is a Cadillac Eldorado. Anybody want to see second prize? Second prize is a set of steak knives. Third prize is you’re waterboarded. Uh…As part of a “team-building exercise,” a Provo-based motivational speaker apparently held a waterboarding “in front of his sales team to demonstrate that they should work as hard on sales as the employee had worked to breathe.” We just took a big step closer to Brazil. (Via TPM.)

    Yoo Tube.

    “The situational forces that were going on in [Abu Ghraib] — the dehumanization, the lack of personal accountability, the lack of surveillance, the permission to get away with anti-social actions — it was like the Stanford prison study, but in spades.” New scenes of vileness and depravity emerge from Abu Ghraib. NSFW, and, in any case, no way to start your day.

    Senate: No More Water Torture. McCain: Well…

    The Senate bans waterboarding by a vote of 51-45 and, surprisingly enough, straight-talker John McCain votes against the bill. “McCain sided with the Bush administration yesterday on the waterboarding ban passed by the Senate, saying in a statement that the measure goes too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding, and he urged the administration to declare it illegal.” God forbid we take too strong a stance against torture, eh, Senator? For shame.

    Obama’s Constitutional Experience.

    “Katyal, who has been called in by both senators, described what sounded like a typical establishment vs. insurgency split between the two. Clinton ‘comes at it a bit more from a top-down perspective,’ he said, ‘as in, “elites are likely to know what the right answer is.” She’ll likely talk to the Nobel Prize winner, but maybe not be as likely to talk to the people on the ground affected by the policies./ Obama, on the other hand, talked to Katyal for two hours when the Military Commissions Act, which sought to limit the Guantanamo detainees’ right to bring appeals in federal court, was being debated in the Senate. He wanted to know how the proposed law would play out directly for the detainees, and Katyal was representing Salim Ahmed Hamdan before the Supreme Court.“

    Slate‘s Emily Bazelon examines how Obama’s years as a con law professor influence his judicial thinking. “Obama’s immersion makes the law professors in his inner circle giddy. In addition to the sweet relief of a candidate who has promised not to keep marching to the drummer of executive power, and who wants to protect rather than diminish the right to privacy, the Obama lawyer team loves their man because he goes toe to toe with them. As Harvard law professor Martha Minow puts it, ‘He has at his fingertips the whole historical context of the moments in which our Constitution has been stretched, or has been in jeopardy, and when presidents have tried to bring it back. This isn’t an afterthought for him: “Oh, I’ll go consult my lawyers.”‘” This probably goes a way toward explaining why Obama has the backing of so many anti-Gitmo lawyers.

    Mukasey Unleashed.

    “I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.” The honeymoon is way over. In congressional testimony yesterday, Attorney General and theoretical straight-shooter Michael Mukasey announces he won’t look into waterboarding, won’t look into the warrantless wiretaps, and won’t enforce the persecuted prosecutor contempt citations. His rationale for all this? If the Justice Department says it’s ok, it’s not illegal. “That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice.” Sigh…it’s enough to make one miss Alberto Gonzales. Ok, not really.

    U.S.: We Waterboarded.

    “Hayden said Khalid Sheik Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. Hayden banned the technique in 2006, but National Intelligence Director Mike McConnell told senators during the same hearing Tuesday that waterboarding remains in the CIA arsenal — so long as it as the specific consent of the president and legal approval of the attorney general.“

    Not to be lost in the Super Tuesday shuffle (as intended): CIA Director Michael Hayden admits that we’ve waterboarded at least three high-level detainees. “Human Rights Watch, which has been calling on the government to outlaw waterboarding as a form of illegal torture, called Hayden’s testimony ‘an explicit admission of criminal activity.’”