Checks and Balances

Supreme Court Agrees to Hear Uighur Detainees' case

Yesterday, the Supreme Court decided to hear the case of 13 Uighur detainees held at Guantanamo Bay who are no longer classified as enemy combatants and have been determined to be no threat to the national security of the United States. These detainees - who were captured in Afghanistan and Pakistan and have been held by the U.S. since 2001 - were cleared for release by the Pentagon in 2003, but six years later, they have yet to be set free.

After the Supreme Court ruled in Boumediene last year that Guantanamo detainees have the right to bring habeas corpus claims in federal court to challenge the legality of their detentions, a federal judge in DC ordered that the Uighur detainees be immediately released into the United States since they cannot return to their own country. As members of a Turkic Muslim minority from the Xinjiang Autonomous Region of China, their release back into their own country would likely result in torture and execution.

In February 2009, a 3-judge panel of the DC Circuit Court of Appeals overturned that order, finding that the federal courts lack the authority to order their release into the U.S. Describing it as an immigration decision, the panel concluded that only the executive branch has such authority and even suggested that the detainees apply for entry into the United States through the Department of Homeland Security pursuant to our immigration laws. In petitioning the Supreme Court for certiorari review, the Uighur detainees argued that stripping the power from the federal courts to order their release into the United States rendered the habeas right recognized by Boumediene meaningless. And indeed, they continue to be held behind chained fences guarded by military men.

Disappointingly, Obama's Solicitor General Elena Kagan urged the Supreme Court not to hear the case, arguing that they have no right to enter the United States. Kagan wrote that "they are free to leave Guantanamo Bay to go to any country that is willing to accept them," but acknowledged that the detainees "understandably do not wish to [return to their home country]." Kagan's brief even attempted to portray the conditions of the Uighurs' imprisonment as not so bad.

In contrast to individuals currently detained as enemies under the laws of war, petitioners are being housed under relatively unrestrictive conditions, given the status of Guantanamo Bay as a United States military base…[They are] in special communal housing with access to all areas of their camp, including an outdoor recreation space and picnic area. . . [They] sleep in an air-conditioned bunk house and have the use of an activity room equipped with various recreational items, including a television with VCR and DVD players, a stereo system, and sports equipment.

Sounds just as good as freedom, doesn't it?

But what if there is no country willing to accept them? That is the case for at least one of the Uighur detainees who has serious mental treatment needs. In that scenario and under these set of circumstances - where they have been found to be no threat to the United States - shouldn't the U.S. take it as a moral imperative to immediately release these people even if they must be released into our borders? Particularly since the media coverage of their wrongful detentions at Guantanamo Bay by the United States is what highlighted the bull's eyes on their backs for the Chinese executioners in the first place?

Let's not be distracted by side arguments by the DC Circuit or our new SG. First, this is not an immigration matter subject to the jurisdiction of the Department of Homeland Security or Congress. These people had no intention or desire to migrate to the United States. They were involuntarily and wrongfully imprisoned by the United States for over eight years. Second, they are not free in any way and are in every sense of the word imprisoned. If relocation to another country is not available, the United States has a moral duty to immediately release these people into the U.S. subject to any parole conditions that may be appropriate. And if the judiciary is the only branch of our government that has the moral compass to do what is right, they should be vested with the power to do so. That is the root of habeas corpus relief which was designed to remedy unlawful government detention. That is why we have our constitutional system of checks and balances.

PFAW

Restore Justice -- Impeach Bybee

Sunday's New York Times included an editorial calling for the impeachment of Jay Bybee, a U.S. Appeals Court Judge on the Ninth Circuit (nominated by Bush) who, while at the Department of Justice, authored memos providing the "legal" justification for the Bush administration's torture policies.

The Times is absolutely right: "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him."

Here's some more from the excellent editorial regarding the investigation that should take place (my emphasis added):

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

...

And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

If the administration won't do it, Congress must hold the executive branch accountable. Sounds familiar.

PFAW's Campaign to Restore Justice

Checks and balances. What a novel concept...

PFAW

Republican Senators Make Threats on Judges, Try to Force "Bipartisanship" at Gunpoint

From Poltico:

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

...

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

  • "Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")
     
  • "Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and
     
  • a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).  

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
 
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees.  And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

PFAW

The Obstruction Strategy

On Wednesday night, I was thrilled to represent People For the American Way members and activists at a small White House reception. When meeting the President and First Lady, as well as Vice President Biden and his wife Jill, it really sunk in that, finally, progressives are no longer locked out as we were during the Bush administration. People For's seat at the table is the Obama administration's recognition of you and all your efforts, your passion and your activism, and our collective strength.

We will still need to organize and fight to achieve our goals, but so much more is possible now and it's good to know that we have a receptive audience. Our vigilance is needed to help make sure the administration does the right thing, but it's also needed because with this shift that I've just described, the Far Right has amplified its efforts to divide Americans and obstruct a progressive agenda.

Yesterday, People For the American Way released a Right Wing Watch In Focus report exposing the Radical Right's real intentions in their efforts to obstruct confirmation of President Obama's Department of Justice nominees:

"The rhetoric used in the attacks, documented extensively on RightWingWatch.org, suggests that the campaign may be less about actually stopping any of these nominees and more about getting right-wing activists, pundits, and lawmakers warmed up for similar attacks on eventual Obama nominees to the federal judiciary, and in particular to the U.S. Supreme Court."

This is more than just "playing politics." The DOJ is a vital branch of the government and these positions are critical to fill. Americans need to be able to put the past eight years of politicization and cronyism at the Department behind us and once again rely on the DOJ as a protector of our rights and values.

As I write this, the Justice Department is at the center of some serious legal matters pertaining to fundamental checks and balances. The Bush administration pushed most people's understanding of executive power to the limit and went significantly beyond. Some members of Congress did not take it lying down, asserting their constitutional authority and acting on their duty to check the president's power and cut through the extreme secrecy. But the process will be a long and intense one and we need a full team in place at Justice to help do the job.

The Senate must not delay in confirming all of the president's nominees, and first up, due to be voted on in committee next week, is Deputy Attorney General nominee David Ogden.

Ogden is incredibly well qualified, but the Right has attacked him because of his representation of American Library Association, the American Booksellers Association, and, yes, Playboy and Penthouse in First Amendment cases. They also went after him for arguing vigorously on behalf of a woman's right to choose and advocating that the U.S. follow the U.N. Convention on the Rights of the Child -- something that only the most fringe elements on the Right oppose.

But most of all, the Far Right is flexing its muscle in advance of judicial confirmation battles to come.

The Family Research Council has generated thousands of calls to the Senate in opposition to Ogden as a show of strength. It is absolutely necessary that senators not only hear from their side. Every senator needs to see that progressive activists are willing to stand up for constitutional values and weigh in on these fights. And they need to see it well in advance of Obama's first judicial nominations.

Please take a moment now to send an e-mail to your senators urging the swift confirmation of David Ogden as Deputy Attorney General.

Whether you live in a red state or a blue state, your senators need to hear from you. Even the most right-wing senators need to know that people in their states are spreading a counter message and are ready to hold them accountable.

Help Ogden achieve speedy confirmation for the sake of the DOJ AND to show senators that it's not only the Right that's strong.

PFAW

Olympic Fever at People For

The Olympics begin today -- with some very personal excitement at People For. David Banks, the son of Executive Vice President Marge Baker, is competing on the U.S. Olympic rowing team in Beijing. I know many of us will be up in the wee hours cheering for David and the team, and looking for a glimpse of Marge and her family in the crowd. This year, American viewers of the Olympics can expect to see a lot of ads for our presidential candidates, bringing our domestic politics more noticeably into an event that always strikes me as a complicated mix of internationalist spirit and patriotic rooting for the home team. And here in the U.S. we'll go pretty much straight from the Olympics into the political parties' nominating conventions and into the final sprint toward Election Day.
PFAW

Olympic Fever at People For

The Olympics begin today -- with some very personal excitement at People For. David Banks, the son of Executive Vice President Marge Baker, is competing on the U.S. Olympic rowing team in Beijing. I know many of us will be up in the wee hours cheering for David and the team, and looking for a glimpse of Marge and her family in the crowd. This year, American viewers of the Olympics can expect to see a lot of ads for our presidential candidates, bringing our domestic politics more noticeably into an event that always strikes me as a complicated mix of internationalist spirit and patriotic rooting for the home team. And here in the U.S. we'll go pretty much straight from the Olympics into the political parties' nominating conventions and into the final sprint toward Election Day.
PFAW