PEOPLE FOR BLOG

A New Ally For Kagan Opponents

As Republican leadership refuses to rule out filibustering Elena Kagan’s Supreme Court nomination, it’s important to keep in mind the ideological company her opponents keep. One new critic is none other than failed Supreme Court nominee Robert Bork, who plans to elaborate on his complaints against Kagan at a Wednesday news conference hosted by the anti-choice group Americans United for Life.

As we pointed out recently, Bork agrees with Republican Senate nominee and Tea Party darling Rand Paul that certain key parts of the Civil Rights Act should never have been passed. And lest his opposition to Kagan surprise anyone, he also opposed President Obama’s last nominee, Sonia Sotomayor. For more on Bork’s judicial philosophy, see the ad we made in 1987 to oppose Bork’s nomination:


 


It’s good to know that today Robert Bork is just another ultra-conservative lawyer and not a US Supreme Court Justice.

PFAW

Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

PFAW

A Father’s Day For ALL Fathers

Kudos to President Obama for including families with two fathers in his Father's Day proclamation. And further kudos are due to the president for inviting a gay father to speak at his Father's Day mentoring barbecue at the White House this afternoon.

As reported in Right Wing Watch, CBN's David Brody is very upset about the presidential proclamation. Brody writes that President Obama is "running the risk of alienating networks of pastors and church goers."

To be accurate, Brody should have written that Obama might alienate some networks of pastors and church goers: those who believe in using the force of the state to destroy families who they have a religious grudge against. What Brody and like-minded minions of the Christian Right conveniently omit is that Obama is also guaranteed to please networks of pastors and churchgoers who believe in the equality of all people, who believe in fighting injustice in any guise, and who truly believe in family values.

PFAW

Another City Joins Arizona Boycott

In May, People For signed on to a travel boycott of Arizona in response to the state’s new draconian immigration law. We’re pleased to note that not only other advocacy groups, but at least 20 US cities, have pledged to boycott the state until it repeals the noxious legislation.

This week another city was added to the list: Burlington, Vermont, where City Councilwoman and YEO Network member Emma Mulvaney-Stanak was instrumental in passing the resolution. A recent article in the Huffington Post noted the impact the boycott is likely to have:

Arizona would be wise to look at … South Carolina, which has lost over $500 million over the past decade due to a boycott stemming from its refusal to remove the confederate battle flag from the capitol. Phoenix estimates that the recent actions will cause the city to lose $90 million in convention business over the next four years and it likely was a factor in the GOP selecting Tampa for its 2012 convention (which could have brought in as much as $150 million to the financially strapped state).

Thanks to Councilwoman Mulvaney-Stanak and other leaders fighting against Arizona’s discriminatory law.

PFAW

Fieldtrip to the Heritage Foundation

As a new arrival in DC (I started interning here two weeks ago), I was thrilled to get a chance to visit the Heritage Foundation for the first time on Wednesday. I know everyone here at People For was flattered to learn that the folks on their “Myth of the Conservative Court” panel had been reading our Rise of the Corporate Court report. A lot.

The panelists – Todd Gaziano, Hans von Spakovsky, and Manuel Miranda -- took umbrage at progressive groups like PFAW using the term “judicial activism” because, well, it belongs to them. And they like the decisions being handed down!

Spakovsky argued that progressives have called the Citizens United decision judicial activism merely because we didn’t like the outcome. He’s certainly right that we don’t like it—and neither do 80% of Americans—but we agree that our dislike doesn’t make it judicial activism. What makes it judicial activism is that the Court based its decision on utterly specious Constitutional grounds, overturning over a hundred years of settled law and its own precedent in the process. John Roberts promised to be a baseball umpire, just calling balls and strikes, but as PFAW President Michael B. Keegan pointed out, “in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.”

Much to my shock, Gaziano admitted during the panel that the conservatives on the Court had exhibited pro-corporate judicial activism in one case, Exxon Shipping Co. v. Baker, deciding in Exxon’s favor for subjective rather than purely Constitutional or statutory reasons. So what makes him think that the Conservative judges weren’t influenced by their corporate bias in the other cases outlined in our Corporate Court report?

What was most remarkable about the panel, though, probably wasn’t the contortions that conservatives are willing to go through in order to deny “judicial activism” by conservatives on the Court—it’s that they’re still clearly trying to use it against progressives. That and the lunch they served afterwards. It was delicious.

PFAW

Dawn Johnsen on Caution and Principle

Last night, Dawn Johnsen spoke to the American Constitution Society, her first public appearance after a year and a half long battle over her confirmation to head the Office of Legal Counsel. Johnsen withdrew her nomination in April after an extended right-wing attack on her criticism of Bush administration torture policies and history of fighting for the right to choose.

In speaking about her nomination, she reminded us why she would have made a strong and honest defender of the law as the head of the OLC:

“As to whether I would have changed any of my positions or softened my stances or decided to just sit out a few issues, the message could not be more clear or more simple: I have no regrets,” Johnsen said.

A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”

Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.

Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.

“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”

PFAW

Texas Textbooks: What happened, what it means, and what we can do about it

People For has been tracking the Religious Right’s crusade to politicize textbooks—and fighting against it—since the 1980s. Our new Right Wing Watch: In Focus report outlines how the latest right-wing takeover of Texas textbooks fits into the history of the religious right’s efforts to influence public education:

Religious Right leaders in Texas have been waging war against science and history for the past few decades. A primary target and battleground has been the state’s public schools, in particular the statewide approval process for textbooks. People For the American Way Foundation first started working with Texans to resist Religious Right takeovers of textbooks back in the 1980s.

The Religious Right has invested so heavily in Texas textbooks because of the national implications. School districts in Texas have to buy books from a state-approved list, and Texas is such an enormous market that textbook publishers will generally do whatever they can to get on that list. Textbooks written and edited to meet Texas standards end up being used all over the country. So Religious Right leaders in Texas can doom millions of American students to stunted, scientifically dubious science books and ideologically slanted history and social studies books. Advances in printing technology make it easier to prevent that from happening now, but it will take vigilance to keep publishers from following the path of least resistance.

Earlier this month, we led a coalition of groups to deliver over 130,000 petitions to a textbook publisher in New York urging them to reject Texas’s new right-wing curriculum standards. You can sign the petition here.

Read the full Right Wing Watch report here.
 

PFAW

After Citizens United: Big Tobacco Aims for More First Amendment Rights

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

 “Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

 “This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others.  But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
 

PFAW

More on the Prop 8 Trial

The frailty of the legal arguments against marriage equality was on full display during yesterday’s closing arguments in the Perry v Schwarzenegger trial. The proponents of upholding California’s Proposition 8, which bans same-sex marriage in the state, insisted during the trial that procreation is central to marriage, and that gay couples should therefore not be allowed to marry. The following exchange between Judge Walker and Charles Cooper, the attorney defending Prop 8, speaks for itself:

MR. COOPER: …Marriage is a license to cohabit and to produce legitimate children.

THE COURT: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.

MR. COOPER: That's true, your Honor, it does not. It does not insist --

THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?

MR. COOPER: No, sir, your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships.

Dante Atkins on the Daily Kos summarizes the circular argument Cooper tried to make:

Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.

Why did Cooper and his colleagues rely on this weak argument? Because they thought the Court would view it more favorably than the toxic anti-gay rhetoric proponents of Prop 8 used in 2008 to convince California voters that same-sex marriages were a threat to children. Christopher Stroll at Pam’s House Blend writes:

[Plaintiffs’ attorney Ted] Olson hammered home the point that during the election, Prop 8 backers argued that children needed be "protected" from gay people -- but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation.

Another baseless argument that backers of Prop 8 made was that gay marriage would “deinstitutionalize” marriage. Olson eloquently debunked that particular right wing myth:

The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution.

PFAW

Our Questions for Solicitor General Kagan

We’ve said repeatedly that Elena Kagan’s Supreme Court confirmation hearings, which start in two weeks, open up the perfect opportunity to the country to have a real discussion of the meaning of the Constitution and the role of the Supreme Court in all of our lives.

Today, we’ve tried to start the conversation by coming up with 20 questions that we would love to see senators on the Judiciary committee ask Kagan.

We want to know Kagan’s answers to questions including:

  • Should Justices respect the original intent of the Constitution’s framers, even when that intent is antithetical to our current values and the Constitution as amended?
  • Does the Constitution give corporations the same First Amendment rights as ordinary citizens?
  • Has the Supreme Court, in cases like Bush v. Gore and Citizens United v. FEC, practiced proper judicial restraint?
  • What theory would govern your evaluation of civil rights laws passed by Congress?


You can read all 20 questions—including a lot more detail—here.
 

PFAW

The Perils of Obstructionism

Senate obstructionism has so crippled one agency that the Supreme Court has ruled invalid over 500 decisions it made over a two-year period.

The National Labor Relations Board, meant to consist of five members, has a statutory quorum of three. But, from the end of 2007 through this March, it operated with just two members. A steel company contested a decision that the two-member board made, saying the board’s decisions weren’t valid without a three-person quorum, and the Supreme Court today agreed.

The question of whether the Supreme Court made the right decision aside (the court, along a 5-4 divide, quibbled about the intent of the statute governing the NLRB), it’s a pretty startling example of the real impact of the Senate’s stalling on executive appointments.

In fact, President Obama finally broke the NRLB’s gridlock in March when he bypassed the Senate to make two recess appointments to the board…after Chief Justice Roberts had urged him to do so in the case’s oral arguments.

By our count, there is currently a backlog of 96 executive nominees waiting for Senate floor votes. A situation like the NRLB’s is extreme, and rare. But it’s a reminder that while the Senate holds up nominees to make political points, there is important work being left undone.
 

PFAW

Chamber of Commerce Wages “Unprecedented” Campaign Against Lead Paint Lawyer

A few weeks ago, we wrote about the Chamber of Commerce’s campaign to prevent the confirmation of attorney John McConnell to be a Rhode Island district court judge, because of his work as a personal injury lawyer to hold corporations accountable for damage caused by their products.

Well, they haven’t succeeded yet, but it looks like they’ve certainly made their presence known. The Senate Judiciary Committee today approved McConnell’s nomination almost entirely along party lines—all but one of the seven Republicans on the committee voted against it.

Today’s Providence Journal reports that the Chamber sent the Judiciary Committee’s members a letter yesterday that made it very clear where they stood:


The Chamber’s letter escalates what was already an extraordinary campaign against the seating of a nominee to the federal trial bench. It is not common for nominations to these courts — dozens of which can be routinely cleared in a given year — to generate controversy. The Chamber says it is unprecedented for it to mount the kind of organized opposition it has launched against this particular U.S. District Court nominee

The Chamber, which tends to support Republicans through its campaign spending arm, has lobbied actively for changes in the system that permits large numbers of plaintiffs to seek large damage awards from companies.

“The Chamber urges you to oppose this nomination,” Josten told the Judiciary Committee in Tuesday’s letter. “Should the committee report Mr. McConnell’s nomination to the full Senate, the Chamber would consider votes on, or in relation to, this nomination in our annual How They Voted Scorecard.”

The Chamber is the biggest lobbying spender on Capitol Hill and its annual scorecard is no joke for lawmakers running for reelection. We’ll be sure to keep following the organization’s crusade as McConnell’s nomination moves to the Senate floor.
 

PFAW

The Freedom to Marry

The American Foundation for Equal Rights has posted a transcript of yesterday's closing arguments in Perry v. Schwarzenegger, the trial challenging the constitutionality of California's ban on same-sex marriage. Theodore B. Olson, the attorney for the couples who are challenging the ban, went straight for the definition of marriage and what it means to individuals and to society.

Here are some excerpts from his closing arguments:

I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry. The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is.

And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it. The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.

Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.

I think it's really important, given what the Supreme Court has said about marriage and what the proponents said about marriage, to hear what the plaintiffs have said about marriage and what it means to them, in their own words.

They have said that marriage means -- and this means not a domestic partnership. This means marriage, the social institution of marriage that is so valuable that the Supreme Court says it's the most important relation in life. The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.

One of the plaintiffs said, "It's the most important decision you make as an adult." Who could disagree with that?

...

On the one hand, we have the proponents' argument that it's all about procreation and institutionalizing -- deinstitutionalizing marriage, but was not supported by credible evidence. I couldn't find it. That's the one hand.

On the other stands the combined weight of 14 Supreme Court opinions about marriage and the liberty and the privacy of marriage. The testimony of the plaintiffs, about their life and how they are affected by Proposition 8, and the combined expertise of the leading experts in the world, as far as we were able to find. It is no contest.

 

PFAW

The New Originalism Debate—An Early Roundup of Good Reads

A few weeks ago, former Supreme Court Justice David Souter delivered a call to arms against the misguided theory of “constitutional originalism” that has dominated recent debates on the Supreme Court. “The Constitution is no simple contract,” Souter said, “Not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”

Souter’s argument has started a robust and refreshing conversation about keeping faith with the Constitution …. and debunking the notion of justices as constitutional umpires who have to simply stand at the plate and call objective balls and strikes.

Constitutional law professor Alain L. Sanders weighed in today with an interesting take on what a literal adherence to the Constitution as originally written —sure to be invoked in the upcoming hearings on Elena Kagan’s nomination— would mean:

The political oratory will be enticing to many, and sound astute, learned and even well-grounded. But much of it will be misleading, wrong-headed, and unsupported by logic, history, or the principles of the Constitution. A simple examination of the Senate confirmation proceedings themselves illuminates the fallacies of the conservative assault.

Sitting on the Senate Judiciary panel will be California's Dianne Feinstein and Minnesota's Amy Klobuchar. To any and all true-blue strict constructionists, the presence of these two women legislators ought immediately to sound the alarm of unconstitutionality and invalidate the entire confirmation process. The Constitution states clearly, directly and consistently throughout its many provisions that federal officials are to be men.

Sanders’ argument brought to mind some other great riffs on Souter’s speech that we’ve seen over the past couple of weeks. These articles are all worth a read:

The Constitutional Accountability Center’s Doug Kendall and UVA professor Jim Ryan argued that adherence to the full text and history of the Constitution – including all of its amendments - is something that progressives can and should embrace:

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

Slate’s Dahlia Lithwick asked why it’s fashionable to see the Constitution as a simple instructional manual:

So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?

And Adam Serwer of the American Prospect, responding to Lithwick, calls originalism out as “a great hustle”:

Lithwick notes that the theory of orginalism assumes a "nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear." But to the originalists, it is always perfectly clear: The answer is whatever they want it to be, all other conclusions are inherently illegitimate. That's what makes originalism such a great hustle -- its arbitraryness is masked by nigh-bulletproof rhetorical argument -- that its adherents are simply "applying the law as written." In order to attack their reasoning, you first have to dismantle the idea that there are no inherent tensions within the Constitution that need to be resolved in order to reach a clear ruling. In a way, originalists are a bit like religious fundamentalists who insist on following their religious texts literally but in practice only select those that fit their prevailing cultural sympathies, dismissing others as heretics and unbelievers.

We’re hoping that the weeks since Souter’s commencement address are just the beginning of a new discussion about the Constitution and the importance of the Supreme Court in all of our lives - a discussion that should be at the center of the debate on Kagan’s confirmation.


 

PFAW

No-Fly Lists and Rendition

On Monday, the Supreme Court declined to hear a case brought by Maher Arar, a Canadian national who was sent to Syria and tortured after arriving in New York from a vacation.

The court did not comment Monday in ending Syrian-born Maher Arar's quest to sue top U.S. officials, including former Attorney General John Ashcroft. Arar says he was mistaken for a terrorist when he was changing planes in New York on his way home to Canada, a year after the 2001 terrorist attacks. He was instead sent to Syria, where he claims he was tortured.

Lower courts dismissed Arar's lawsuit, which asserts the U.S. purposely sent him to Syria to be tortured. Syria has denied he was tortured.

The Canadian government agreed to pay Arar $10 million and apologized to him for its role in the case.

Yesterday’s New York Times reported that Yahya Wehelie, a US citizen who was on his way home from Yemen, is in custody in Cairo after F.B.I. agents discovered that he was on a no-fly list.

For six weeks, Mr. Wehelie has been in limbo in the Egyptian capital. He and his parents say he has no radical views, despises Al Qaeda and merely wants to get home to complete his education and get a job.

But after many hours of questioning by F.B.I. agents, he remains on the no-fly list. When he offered to fly home handcuffed and flanked by air marshals, Mr. Wehelie said, F.B.I. agents turned him down.

“The lady told me that Columbus sailed the ocean blue a long time ago when there were no planes,” Mr. Wehelie said in a telephone interview from Cairo. “I’m an innocent American in exile, and I have no way to get home.”

The common thread uniting these two situations is silence. By refusing to hear Mr. Arar’s case, the Supreme Court tacitly acknowledges the government’s argument (a carryover from the Bush administration) that any matter which could jeopardize national security does not belong in court. In Mr. Wehelie’s case, the FBI invoked a policy that precludes it from discussing persons on watch lists or no fly lists.

By continuing his predecessor’s policies, President Obama is responding to the pressure placed upon him by recent terrorist threats. But at what cost? Do fundamental rights to due process stop applying as soon as the government decides you aren’t worthy of them?
 

PFAW