At long last, it looks like the discriminatory Don't Ask, Don't Tell policy may finally be on a path to repeal:
President Obama has endorsed a "don't ask, don't tell" compromise between lawmakers and the Defense Department, the White House announced Monday, an agreement that may sidestep a key obstacle to repealing the military's policy banning gay men and lesbians from serving openly in the armed forces.
The compromise was finalized in meetings Monday at the White House and on Capitol Hill. Lawmakers will now, within days, vote on amendments that would repeal the Clinton-era policy, with a provision ensuring that any change would not take effect until after the Pentagon completes a study about its impact on troops. That study is due to Congress by Dec. 1.
Congressional votes on the repeal are expected to be close. Let’s hope our elected officials have the courage to do the right thing and end a policy that has prevented thousands of patriotic Americans from serving their country honestly and openly.
Good news from the Supreme Court this morning: after taking abeating for its 2007 decision denying Lilly Ledbetter the right to sue her former employer for years of wage discrimination based on a deadline she could not have observed, and for a series of stunning pro-corporate rulings, the Court today handed down two decisions restoring justice to workers who had been denied relief based on technicalities.
In Lewis v. City of Chicago, the Court ruled that 6,000 African American applicants for firefighting jobs in Chicago could sue the city for discrimination, even though the city argued they had filed their complaints too long after the discrimination had taken place (whether or not the discrimination happened was not in question):
In a 9-0 decision, the justices said the city was liable for paying damages to those applicants who had "qualified" scores on the test but were excluded in favor of those who scored higher. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.
The question was whether the city’s discrimination had taken place when it had compiled a discriminatory hiring list (in which case the plaintiffs had missed the filing deadline), or each time it made a hiring decision based on that list (in which case they had sued the city in time). The court ruled the latter.
And in Hardt v. Reliance Standard Life Insurance Co., the Court ruled unanimously that an employee who had prevailed in her suit for benefits under the Employee Retirement Income Security Act (ERISA) could gather attorneys’ fees, even though she had not prevailed through a judicial decision. (Her employer had backed down and agreed to pay her compensation before the case was decided by a court).
From California, an example of what an unregulated corporate bank account can buy at the ballot box. NPR reports that big corporations have been spending millions of dollars to finance ballot initiatives in California, on issues including suspending the state’s clean air law (oil companies), revising auto insurance rules (insurers), and making it more difficult for municipalities to compete with private utility companies (you guessed it….):
Take Proposition 16, for example. The initiative, which proponents call the "Taxpayer's Right to Vote Act," would require a city or county that wants to start a municipal utility or expand an existing one to get approval from two-thirds of its voters. The backer of all this extra democracy is Pacific Gas and Electric, California's largest private, for-profit electric company.
"Prop 16 puts the power back in the hands of the people," says Robin Swanson, spokeswoman for the "Yes on 16" campaign. Pacific Gas and Electric, she says, isn't afraid of competition from publicly owned power providers.
"If our opponents can provide cheaper, greener, better electric service, then they shouldn't be afraid to go to the people and sell it to them," she says.
Except those municipal power providers are forbidden by law from spending a dime on electioneering. PG&E, on the other hand, has already put about $44 million into the campaign for Proposition 16.
Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.
In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay - a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.
More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.
But, as the Washington Post’s Ruth Marcus points out, there was a time not long ago when Republican Senators were faced with someone with views very similar to Paul’s–and, instead of distancing themselves from him, tried to put him on the Supreme Court.
Rand Paul and Robert Bork, Marcus writes, “are ideological soul mates.” For those whose perspective on the rejected Bork nomination is that it was such a skewed pummeling that it led to the creation of a new verb -- Borking -- here’s a reminder. Writing in The New Republic in 1963 about the proposed civil rights act, Bork inveighed against a principle of "unsurpassed ugliness” -- not of racism, mind you, but of the notion of compelling private property owners to stop discriminating. Sound familiar? The next year, Bork lit into the proposed bans on discrimination in both employment and public accommodations, saying they would “compel association where it is not desired,” and citing “serious constitutional problems” with the measure.
Bork renounced those views publicly in 1973, during his nomination for solicitor general. Paul’s about-face took less than 24 hours.
It might seem unfair to bring up a 23-year-old nomination battle in the debate over today’s policies, but some in the Republican Party have done just that, using Bork’s Senate defeat as a recurring Supreme Court talking point.
Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.
It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?
Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.
As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flawsin their argumentbecame clear.
Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
“[C]ivil libertarians and even experienced FBI interrogators argue,” Serwer writes, “that attempting to modify Miranda would be a political solution to a national security problem that doesn't exist.”
Conservative criticism of Miranda itself has had a dramatic effect, which can be seen in the administration's handling of the Times Square attempt. Testifying before a Senate subcommittee on May 6, Holder said Shahzad had been questioned for "hours" under the public-safety exception before being read his Miranda rights. According to the administration, he also waived his right to be brought before a judge and so was questioned for two weeks before seeing the inside of a court on Tuesday.
After Holder announced the administration sought to change the rules around Miranda, The New York Times reported that the administration also wanted to be able to prolong the time that law enforcement can detain a suspect before bringing him or her before a judge, generally 72 hours. Under the PATRIOT Act, law enforcement can actually get an extension -- in the case of a non-citizen -- as long as seven days. The administration's position on Miranda represents a reversal from its previous position, supported by veteran FBI national security officials like Ali Soufan, Jack Cloonan, and Joe Navarro, that law-enforcement procedures don't interfere with intelligence gathering.
This week, People For joined 34 other progressive organizations in sending a letter to Holder urging him to reconsider the proposed move. “Weakening Miranda,” the groups wrote, “would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
The New York Times ran a powerful editorial today on the stark contrast between the courage of activists fighting for fair and comprehensive immigration reform and the somewhat less courageous behavior of those in power in Washington.
They highlight the story of four students—three of them undocumented immigrants who came to the country as children— who were arrested Monday for staging a sit-in in Sen. John McCain’s Tucson office to advocate for the DREAM Act.
Who else has shown such courage in the long struggle for immigration reform? Not Mr. McCain, who ditched his principled support of rational immigration legislation to better his odds in a close re-election campaign against a far-right-wing opponent. Not President Obama, who has retreated to lip service and vagueness in his calls for reform. Not his administration. The Justice Department has stood by as a civil-rights coalition — the American Civil Liberties Union, Maldef, the N.A.A.C.P., the National Day Laborer Organizing Network and others — has swiftly sued to block the Arizona law.
Other supposed defenders of immigrants, Democrats in Congress, have lost their voices. Senators Charles Schumer, Robert Menendez and Harry Reid, mindful of November elections and frustrated Latino voters, have unveiled a blueprint for immigration reform that parrots Republican talking points about clamping down the southern border and treating the undocumented as a swelling tide of criminals.
Good immigration reform needs a good bill, and the administration and the president and Democratic leaders haven’t yet offered or convincingly fought for one. The fight for reform is stalled. It could be simple acts of protest that ignite a fire. Half a century ago it was young people, at lunch counters and aboard buses across the South, who help galvanize the movement for civil rights, and to waken more powerful elders to injustice.
A Public Citizen report, released today, finds that since the start of last year, lobbyists fighting against strong derivatives regulation—a key part of Wall Street reform—have outnumbered those supporting it by a ratio of 11-1.
Since the beginning of 2009, nearly 1,000 lobbyists have worked on at least one of nine key bills designed to rewrite the rules governing derivatives, a new Public Citizen report shows.
These lobbyists have overwhelmingly represented organizations opposing or attempting to water down proposed regulation, according to Public Citizen’s analysis of lobbying disclosure data filed with the U.S. House of Representatives.
Lobbyists representing opponents of strong derivatives reform have outnumbered pro-reform lobbyists by more than 11-to-1 (903 to 79 lobbyists). Among the clients represented by the anti-reform lobbyists were the nation’s five largest banks, several major financial trade associations and the U.S. Chamber of Commerce.
With that kind money and influence advantage, it’s no wonder the big banks have felt free to take big liberties with the facts about reform.
Sinema, recipient of last year’s Young Elected Officials Network Barbara Jordan Leadership Award, has been a strong voice in opposition to Arizona’s new law, and in support of real, comprehensive immigration reform. You can watch her debate Maricopa County Joe Arpaio on CNN here, and discuss the new law with Keith Olbermann here.
A coalition of 35 progressive organizations, including People For the American Way, sent a letter to Attorney General Eric Holder this morning urging him to reconsider his stance on weakening Miranda rights. Holder has said the Obama Administration is open to expanding the “public safety exception,” which allows officers in exceptional circumstances to question suspects before reading them their rights. The coalition, led by the National Association of Criminal Defense Lawyers, argues, “Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
As you know, the Supreme Court crafted the "public safety exception" to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when "reasonably prompted by a concern for public safety." It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.
Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”
In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.
People For has now joined a number of other national groups in signing on to a travel boycott of Arizona until the law is reversed. The groups—including the National Council of La Raza, the American Civil Liberties Union, SEIU, the Leadership Council on Civil Rights, and the Center for Community Change—have agreed to:
Not hold any conventions, conferences, special events, or major meetings involving significant travel to Arizona from out of state, while this law is in force.
Strongly discourage their affiliates, chapters, or members from holding any conventions, conferences, special events, or major meetings involving significant travel to Arizona from out of state, while this law is in force.
Widely disseminate the adverse consequences of this legislation to their key stakeholders, for the purpose of encouraging informed judgments regarding whether stakeholders should hold, convene, sponsor, or otherwise support any conventions, conferences, special events, or major meetings involving significant travel to Arizona from out of state, while this law is in force.
Call on all other major American institutions to consider choosing alternative locations for conventions, conferences, special events, or major meetings already scheduled involving significant travel to Arizona from out of state, while this law is in force.
Call on their affiliates, chapters, members, stakeholders, all major American institutions, and people of conscience everywhere to carefully consider whether the dollars they spend as consumers of goods and services could end up, directly or indirectly, supporting the perpetuation of this unjust law.
Arizona is already hurting from this and other boycotts. Less than three weeks after the new law was passed, Arizona’s hotel and lodging association had already counted a loss of 23 meetings, at an estimated loss to the state of $6 to $10 million. And a city official in Phoenix has predicted that boycotts could cost his area $90 million over the next five years.
A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.
Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.
Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).
“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”
State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.
Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.
By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.
But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.
Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
This past Sunday as I was waiting to go on Fox News to talk about the importance of the upcoming debate about the kind of Supreme Court Americans wanted, I had an extra few minutes to walk around the Capitol Hill area near the studio. As I was thinking about one of my key points – that we need a Justice who will keep faith with a Constitution that has been amended by generations of Americans to make sure that “We the people” means “all the people” - across my blackberry, came word that Attorney General Holder had just said on one of the morning news shows that he wanted Congress to consider modifying the Miranda rule to permit the government to interrogate citizens and legal aliens suspected of being involved in terrorism without advising them of their constitutional right to a lawyer and of their constitutional right not to incriminate themselves.
Now, I understand that these are troubled and scary times and that Americans understandably fear for their own safety as well as that of their loved ones. The attempted bombing in Times Square certainly was a wake up call. But, my gut told me that this was a bridge too far – that if we surrender the core constitutional values that make us and our democracy unique in the world, we are left with very little. As hard as it is sometimes, we really do need to make sure that “all the people” and not just some are protected by the Constitution.
And, as I was pondering this critical crossroads that we find ourselves at as a nation – I came upon the most eloquent reminder of how crucial it is to keep faith with these core constitutional values. It was the small park, near the corner of North Capitol Street and Louisiana Ave that houses the National Japanese American Memorial to Patriotism during World War II. The memorial was created as a tribute to brave Japanese Americans who fought for this country – and for our democracy – during World War II, despite that fact that their families and loved ones had been stripped of their homes and their belongings and were being kept in internment camps because of (what legislation passed by Congress and signed by Ronald Reagan in 1988 called) “race prejudice, war hysteria, and a failure of political leadership.” The shame of that moment in our history – capped by the Supreme Court’s infamous decision in Korematsu v. United States – should serve as a potent reminder to us of how important it is to keep faith with our core values and who we are as Americans.
My humble advice – let’s step back, take a deep breath, and think long and hard before we take steps that we will regret in the future.