Legal

Obama Administration Raises the Bar on Wiretap Secrecy

Two of the most damaging legacies of the Bush Administration - the gutting of FISA through warrantless wiretapping, and the assertion of the almost monarchical "unitary executive" theory of executive branch authority - returned to center stage late last week, as the government responded to the suit brought by the EFF in Jewel v. NSA.

Glenn Greenwald writes in a post yesterday the disappointing direction Obama's DOJ has taken in regards to the warrantless wiretapping lawsuit the Electronic Frontier Foundation brought against the Bush Administration in October. On Friday the DOJ offered up its first response to the court. Greenwald:

[T]he Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

Greenwald's post involves a lot of legal heavy lifting, but it's very accessible and worth reading.

This development is scary, but sadly not the first time Obama's DOJ has taken cues from its predecessor. In February we noted with disappointment the continued use of the "state secrets" privilege in the extraordinary rendition case Mohamed et al. v. Jeppesen.

One of the much lauded compromises of the FISA amendments last year was the fact that while telecom corporations were immune from suit, government officials could still be brought to court for illegal wiretapping. So while the new FISA now allows for longer periods of warrantless wiretapping (7 days, up from 48 hours) and permits the destruction of wiretap records, the DOJ now aims to snatch away the single bone thrown to civil libertarians.

You can read the EFF's press release here.

PFAW

The Audacity of Blackmail

According to the Daily Beast, the GOP is threatening to filibuster President Obama’s legal nominees if he moves to release the infamous “torture memos” that came out of the John Yoo-era Office of Legal Counsel:

A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

It was bad enough that George W. Bush spent the last eight years politicizing the Department of Justice and degrading the rule of law. Now, instead of working with the new administration to clean up the DOJ, Republican Senators are apparently doubling down and desperately attempting to cover up the Bush Administration’s misdeeds and their own complicity.

As several of the Democrats on the Senate Judiciary Committee said during the Committee’s vote on Dawn Johnsen’s nomination: bring it on. If the GOP wants a public debate about what’s been going in on the Justice Department, that’s the kind of debate the American people will understand.

In the mean time, now would be a good time to remind every member of the U.S. Senate, Democrat and Republican alike, that it’s time to confirm Dawn Johnsen and clean up the DOJ.

PFAW

Torturing the Rule of Law

Newsweek is reporting:

Over objections from the U.S. intelligence community, the White House is moving to declassify—and publicly release—three internal memos that will lay out, for the first time, details of the "enhanced" interrogation techniques approved by the Bush administration for use against "high value" Qaeda detainees. The memos, written by Justice Department lawyers in May 2005, provide the legal rationale for waterboarding, head slapping and other rough tactics used by the CIA. One senior Obama official, who like others interviewed for this story requested anonymity because of the issue's sensitivity, said the memos were "ugly" and could embarrass the CIA. Other officials predicted they would fuel demands for a "truth commission" on torture.

Torture and the other illegal activities approved at the very highest levels of the Bush Administration must be exposed to the public for a simple reason: sweeping officially-sanctioned lawbreaking under the rug is dangerously corrosive to the rule of law.  After all, if one president can get away with illegal behavior without any consequences, what’s to prevent another president from doing the same?

America will have more presidents, good and bad, and letting the malefactors of the Bush Administration off the hook can only encourage future criminal abuses of authority.

We must have full accountability for what happened during the Bush era.
 

PFAW

Truth Telling in the Senate Judiciary Committee

President Obama’s choice to head the Office of Legal Counsel moved out of the Judiciary Committee today on a not-quite party line vote of 11-7. All the Democrats on the Committee supported her nomination, and all the Republicans opposed it, except for Arlen Specter, who passed.

Today’s vote is important because now the nomination of this extraordinarily qualified woman to head the Office of Legal Counsel will go forward to the floor, where—hopefully—she will get a vote by the full Senate.

But today’s session was also important because of the truth telling by a number of members, including Senators Leahy, Durbin, and Whitehouse, about the central role the Office of Legal Counsel played during the Bush Administration in undermining the rule of law and advancing some of its "most horrendous practices." As Senator Whitehouse said it was the "leading contender for the most rotten place during the Bush Administration.” 

The Senators made the case for how qualified Dawn Johnsen is to head this office—her record of previous service as a Deputy Attorney General; her intellectual honesty and exceptionally good judgment; her extremely constructive role, in response to the Bush Administration excesses, in pulling together nineteen former OLC attorneys to craft a statement of principles to guide the Office of Legal Counsel that has won bipartisan praise. And they told their colleagues on the other side of the aisle that when this nomination comes to the floor, if they want to debate the past role of the Office of Legal Counsel, if they want to debate the role that John Yoo among others played in undermining the rule of law, then bring it on. That’s the kind of debate the American people will understand!

This was a good day for the American people, and for the rule of law.  Let’s hope it continues.

PFAW

Lift the Ban

Repealing "Don't Ask, Don't Tell" (DADT) is a prime issue for LGBT lobbyists and activists nationwide--including here at People For. Freedom from discrimination is a basic right that all Americans should enjoy. Repealing DADT is necessary for our nation to restore its core values, especially the principle of equality for all.

On Friday, March 13th, 2009, Servicemembers Legal Defense Network (SLDN) hosted a lobby day and a "Freedom to Serve Rally" on Capitol Hill, and I was pleased to be able to join them. Lobby groups targeted Representatives and Senators who currently oppose the repeal.

As a supporter of repeal, it was difficult for me to understand how Representatives and Senators could refuse to support ending DADT. It was shocking for me to see how many Congress members were completely uninterested in hearing from our group--even those of us who had served in uniform for our country.

Later, I could not hold back the tears when some of our discharged service members, some after even 25 years of service, shared their stories during the Freedom to Serve Rally. Rep. Eleanor Holmes Norton (D-DC) was a standout among an impressive lineup of speakers. Rep. Norton declared: "I'm done asking! And I'm telling!" We're not asking for repeal any longer, we're telling Congress and President Obama that the time for repeal is now. And this isn't just about fairness and job discrimination, Rep. Norton noted, but it is also about the strength of our military.

Lifting the ban on "Don't Ask, Don't Tell" is not only necessary for retaining equality, but it's necessary for ensuring that our armed forces remain the best in the world. It is imperative that we join together to make sure that all Americans can serve honestly and openly in our armed forces. Together, we can and we will lift the ban!

PFAW

Obama's First Judicial Nomination: A Good Start

News reports state that David Hamilton, a federal district court judge in Indiana, will be President Obama’s first judicial nominee. He will apparently be nominated to serve on the United States Court of Appeals for the Seventh Circuit.

I am just learning about Judge Hamilton. In 2005, according to the New York Times, "he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers. The decision drew widespread criticism in the legislature and across the state."

I can only imagine.

The overwhelming majority of Indianans are Christian. I’d venture to guess that very few of them have ever lived in a society where theirs was a minority religion, and where the government officially promoted a religion that condemned theirs. The experience of their lives is one where they are comfortably in the majority.

As a Jew who grew up in conservative Texas, my experience is different. I know how it felt in elementary school when public school teachers imposed their Christianity upon the classroom. Officially-sanctioned Christianity regularly made it clear that I was an outsider in my own society: I did not belong.

That is but one of the many excellent reasons that the Founders wisely adopted the First Amendment’s prohibition of the establishment of religion by government. But it’s the one that first occurred to me as I read about the Indiana legislative prayer case.

It is important that judges as a group reflect the diversity of America, so the bench is filled with jurists with a wide variety of life experiences, ranging from the top to the bottom of the social ladder. But that does not excuse the individual judge from being able to step outside their own life experience and recognize that what is not a problem for them can be a severe problem for someone whose life has been different. That is an essential quality for a judge. It’s what made the Brown v. Board of Education decision so different from Plessey v. Ferguson, even though both cases were decided by all-white Courts. Similarly, it’s what made 1976’s Craig v. Boren (establishing a higher level of scrutiny for legal sex-based classifications) so different from 1872’s Bradwell v. Illinois (upholding the state’s prohibition against women attorneys), even though both cases were decided by an all-male Court.

Perhaps Judge Hamilton’s ability to step outside his own experiences helped him decide the legislative prayer case. Either way, he clearly was willing to enforce the First Amendment and clear Supreme Court precedent in a case where he knew that he would be condemned by many people in his state. He put the law over ideology. That’s another quality needed in a judge.

This is an encouraging first judicial nomination from President Obama.

PFAW

Supreme Court Chips Away at Voting Rights Protections

Twenty four hours after thousands celebrated “Bloody Sunday” earlier this week – a voting rights march from Selma to Montgomery where civil rights marchers including Rep. John Lewis (D-GA) were attacked and brutally beaten by Alabama state and local police, but ultimately led to the historic passage of the Voting Rights Act of 1965 – the Supreme Court undermined some of the enforcement mechanisms of the Voting Rights Act.

I was troubled, in particular by this reference in a NY Times article about Richard Pildes, an expert whose views the Justices relied on in Mondays’ decision, who, according to the Times, “said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating ‘tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.’ “

There’s no disputing the fact that much progress has been made, but even today, we’re a far cry from the post-racial world that MLK described in his famous I Have a Dream speech. To it's credit, even the Supreme Court recognized that racial discrimination and racially polarized voting are not ancient history. This issue is not simply about having an African American President or leader in the Republican Party. This is a larger issue of opportunity for all citizens and one federal election has not summarily changed the reality existing in this country still. There’s no African American representing an overwhelmingly white district in the House, and no African American governors representing a Southern state (there’s only been one in history – Douglas Wilder of Virginia).

I recognize that there’s been much progress, but there’s more work to be done and vital protections such as those in the VRA are still necessary.
 

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

Hardly the End of DOMA.

Late last week, you may have seen headlines about a federal judge on the U.S. Court of Appeals for the Ninth Circuit who ruled the Defense of Marriage Act unconstitutional. For anyone in favor of equal justice under law (and opposed to DOMA) this was good news. Unfortunately, the ruling is extremely limited. For your convenience, we’ve answers a few of the questions we've heard about the decision.

Q: What happened?

A: The case involved Brad Levenson, a public defender in the federal court system whose employer -- the Office of the Federal Public Defender -- denied his husband spousal health insurance benefits because of the Defense of Marriage Act (DOMA). Rather than simply accepting this state of affairs, Levenson filed a complaint with his employer -- the 9th Circuit Court of Appeals.

Judge Stephen Reinhardt of the Ninth Circuit heard the case and issued a ruling that DOMA is unconstitutional, finding no rational basis to deny benefits to some legally married spouses and not to others.

Q: So does that mean DOMA is no longer in effect, at least within the states comprising the Ninth Circuit?

A: No, DOMA is still in effect there and everywhere else throughout the country.

Q: Why is that? Doesn't a circuit court opinion bind all federal courts within that circuit?

A: Yes, a circuit court opinion usually does just that. Normally, a circuit court opinion comes either from a three-judge panel or from all of the circuit judges. But this opinion came from just one judge, and it was more like an internal, administrative employment dispute resolution opinion.

Q: Why isn't it a regular court opinion?

A: Because the married couple claiming discrimination did not go to court and sue the federal government for the spousal benefits. Instead, Levenson, in his status as an aggrieved employee of the Office of the Federal Public Defender, filed an administrative complaint with his employer.

So Judge Reinhardt did not issue his opinion in his role as a federal appellate judge deciding the appeal of a lower court's legal holding in a conflict between two parties. Instead, he was acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Q: Circuit Court opinions are binding on lower courts in that circuit. Who is bound by Judge Reinhardt's decision on DOMA?

A: This is an internal administrative ruling by an employer about one employee's benefits. It certainly helps Brad Levenson and his husband. But in his capacity as the administrative decision-maker who was designated to hear Levenson's case, Judge Reinhardt doesn't hold a hierarchically superior position over the next decision-maker in the next employment dispute in the Office of the Federal Public Defenders within the Ninth Circuit.

Q: There was another case last month where a Ninth Circuit judge ordered the government to provide benefits to a same-sex spouse. Will that have more of an impact?

A: Not at all. It was another case where the judge was acting as the decision-maker in an employment dispute resolution. It involved a Ninth Circuit employee covered by the employment dispute resolution plan specifically applicable to Ninth Circuit employees, as opposed to the one applicable to members of the Federal Public Defender system.

In fact, when Judge Reinhardt issued his decision last week, he explicitly said that he was not bound by the January ruling, because two different employee dispute plans were involved. That shows how these decisions have little to no value as binding precedent.

Q: Is either case going to be appealed to the Supreme Court?

A: No, because these employment dispute resolutions are not regular Circuit Court opinions released as part of a criminal or civil judicial proceeding.

Q: Has anything changed for the widow who is denied her late wife's Social Security pension benefits, or for the American man whose non-citizen husband is threatened with deportation?

A: No. DOMA still denies gays and lesbians the more than one thousand federal rights and responsibilities that come with marriage. Last week’s news doesn't change that.

Q: What about a legislative remedy instead of a judicial one? Can Congress repeal DOMA?

A: Yes, definitely. President Obama is already on board and has called for repeal of this hateful law. We all need to work hard as hard as ever to get Congress to act.

PFAW

Rumors of their death...

Even before November's election, gallons of ink were being spilled to report the demise of the Religious Right. But, as Mark Twain might have said, rumors of the Right's death have been greatly exaggerated.

A small incident that was mostly ignored by the media gives a glimpse of the Radical Right's continued pull on Capitol Hill. Last week, People For's Right Wing Watch blog documented the evolution of a right-wing lie, starting with complaints by Pat Robertson's American Center for Law and Justice that a provision in the stimulus bill discriminated against people of faith (and was, specifically, anti-Christian). In fact the provision in the bill was standard language that barred the use of federal funds to construct buildings designed for religious worship or sectarian instruction and had no bearing at all on campus prayer.  Nevertheless, ACLJ's complaints bubbled up through the right-wing echo chamber and eventually became an amendment, offered by Senator DeMint of South Carolina, to strip the provision. The amendment was ultimately defeated, although by a less-than-comfortable margin. In the end, 43 senators, including some Democrats, voted with DeMint ... on an amendment that was based on nothing but the paranoid demagoguery of a fringe right-wing organization.

The right-wing message machine is firing on all cylinders too: aggressively targeting the Obama administration. It has already weighed in heavily on the economic stimulus plan, ensuring that there was no Republican support for the Obama plan during the House vote (and little more in the Senate), and Religious Right leaders are moving quickly to increase their influence within the Republican Party and at the state and local level.

Perhaps most dauntingly, the Right is laying the groundwork for future battles over judicial nominations. Some Right Wing leaders, including Family Research Counsel President Tony Perkins, have been very explicit about linking their current attacks on DOJ nominees to future obstruction of Obama judges. And if the current attacks are any indication, they'll throw everything they've got at the President's nominees to the bench. Deputy Attorney General-nominee David Ogden, for instance, represented groups defending the First Amendment (including the American Library Association and the American Booksellers Association), and is now being smeared as a "porn lawyer" for his efforts. Dawn Johnsen, President Obama's choice to head the Office of Legal Counsel, is being aggressively targeted because of her outspoken opposition to the Bush administration's support of torture, rendition, and warrentless spying -- to say nothing of her time on staff at NARAL Pro-Choice America.

People For the American Way and People For the American Way Foundation are out there every day -- pushing back on the Right's unyielding efforts. We're digging in our heels for 2009, ready to:

  • research, educate about and counter extreme claims of the Radical Right;
  • uphold and advocate for a progressive vision of the Constitution;
  • support the confirmation of progressive jurists and promote progressive legal theories while taking part in strategic litigation;
  • fight for equality for all, especially through the Foundation's work to combat homophobia in the Black Church; and
  • invest in progressive leadership.

You can help with these efforts by helping to expose the Radical Right in your community, and by staying abreast of right-wing trends by reading the Right Wing Watch blog (and signing up for regular Best of the Blog e-mail updates).

By standing with People For the American Way, you are standing against the undeserved influence of right-wing extremists in our politics and our culture. And I thank you for it.

PFAW

Dealing With the Right's Big Lies

We here at People For have been making the case since the November elections that even though the results were devastating for the Republican Party, they actually strengthened the Radical Right and increased its influence within the GOP. Republicans in Congress are now unabashedly taking their marching orders directly from right-wing demagogues and organizations ... even scarier: some Democrats seem to be falling in line as well.

Kyle at Right Wing Watch had two great posts yesterday on the Right's direct manipulation of some of the biggest current debates in Washington. He exposed how the targeting of President Obama's DOJ nominees is really being directed by the Family Research Counsel and other fringe groups and wrote about the outright lie started by Pat Robertson's American Center for Law and Justice (ACLJ) that a provision of the stimulus package -- now being debated in the Senate -- is an attack on people of faith.

The ACLJ’s water was carried by Senator Jim DeMint (R-SC) who actually offered an amendment to the stimulus package which would have stripped the 'controversial' provision -- the provision in question simply prevents the tax dollars being appropriated here from being used to support religion. So we had DeMint and others parroting lies on the Senate floor to support an amendment that had no legitimacy whatsoever.

And the amendment only failed by a close vote of 54-43 ... with several Democrats defecting and voting for DeMint's amendment!

Why did they defect? Well, in part, it's because President Obama's been sending them the wrong message about how to deal with the Religious Right. The other day, the president announced the creation of the White House Office of Faith-Based and Neighborhood Partnerships, but very conspicuously did not use the opportunity to rescind the Bush-administration policy making it legal for recipients of faith-based funding to discriminate in providing services.

Equivocation on very fundamental religious liberty issues will not help the country, and it will not help the president move his agenda. President Obama is starting to get angry – and rightly so -- at the people who are trying to derail his stimulus package. Most critics are trying to Republicanize the spending package to kill some very vital spending that would aid recovery and add more tax cuts. The president correctly states that the old supply-side economic policies of Reagan and Bush -- reckless tax cuts, cuts in spending where the economy needs it most, rampant and irresponsible deregulation -- were exactly the same policies that landed us in this economic mess to begin with. But now, some Democratic Senators are being cowed by the Rush Limbaugh-led Right into compromising on key parts of the stimulus plan.

Getting beyond partisanship is a lofty ambition, but when the other side is trying to take the country backwards, firm opposition is what's needed. Our new president would be best served to stick to the principles he campaigned on and stand up to the Right's ideological agenda -- whether it rears its ugly head in the economic debate or in the arena of constitutional rights and the separation of church and state.

President Obama and all the Democrats on the Hill should read People For the American Way's new Right Wing Watch In Focus memo on The Right's "Big Lie" Strategy.

PFAW

Restoring Justice, Step by Step

On Monday, Eric Holder was confirmed as Attorney General. Big news ... and good news for Americans who depend on the Justice Department to defend their rights. A bit more under the radar, Monday also saw another important piece of news at the DOJ. Leslie Hagen, a Justice Department attorney who was fired by Monica Goodling because of rumors that she was a lesbian, was rehired to her previous job at the Department.

This is just one step in cleaning up the appalling mess at the DOJ left by egregious politicization during the Bush administration. Monica Goodling, senior counsel to Attorney General Alberto Gonzales, was by all objective standards unqualified for such a high post. Her only "qualifications" -- the only ones that mattered in the Gonzales DOJ -- were that she was a partisan ideologue who graduated from Pat Robertson's Regent University Law School and was committed to reshaping the Justice Department to operate on a right-wing agenda.

Even though the politicization of the DOJ under President Bush was shameful (and possibly criminal), some senators apparently think it should continue and are taking their marching orders from the Radical Right. The next targets of their witch hunt? Three more of the president's eminently qualified DOJ nominees: David Ogden, Thomas Perrelli and Dawn Johnsen.

Dawn Johnson, for example, has been tapped to head the Office of Legal Counsel (OLC) -- the office that, under the Bush administration, produced the memos that served as its guidelines for detainee treatment and executive overreaching. Johnsen has been a harsh critic of the Bush administration's legal justifications for its policies. And, in her extremely impressive legal career, she spent several years at NARAL Pro-Choice America. Already some senators like Jeff Sessions of Alabama -- who earlier this week assailed the Johnsen nomination on the Senate floor -- are suggesting that, in their view, pro-choice bona fides should be an instant disqualifier.

Quickly confirming the rest of President Obama's Justice Department team will be one more important step, but there's still much more to be done to repair what was so damaged during the Bush years.

Let's look back at just a few of the disasters born out of DOJ's right-wing politicization:

  • political firings of U.S. attorneys;
  • political firings of staff attorneys, especially in the Civil Rights Division;
  • refusal to properly enforce civil rights laws, particularly those protecting voting rights;
  • Department approval and justification of unconstitutional policies from warrantless domestic spying to the denial of habeas corpus and torture.

People For the American Way will be pushing for investigations into these wrongdoings. I know how important this issue is to our activists -- you've pitched in time and again over the last eight years as we've pushed for accountability and the rule of law at the DOJ, and hundreds of you wrote me impassioned emails last week about just how critical it is to keep pushing.

Karl Rove and others who are subpoenaed to testify or provide documents must comply and cooperate not just with Justice Department probes into these matters, but also with any and all congressional investigations. Congressional action is what's needed to get to the bottom of what happened, hold those responsible accountable and prevent similar abuses of power from happening in the future.

Making sure investigations happen and proceed effectively and making sure President Obama's other Justice Department nominees are confirmed smoothly are just two things we'll be working hard for in the coming weeks, and there will be much more.

I'd also like to take a moment to ackowledge Supreme Court Justice Ruth Bader Ginsburg who is in the hospital recovering from surgery. She's a true defender of our constitutional values and I know you'll join me and the rest of the staff of People For in wishing her a speedy recovery.

PFAW

Mark Gitenstein for Office of Legal Policy

I’ve seen some concerns expressed about the possible nomination of Mark Gitenstein to head the Justice Department’s Office of Legal Policy, including questions about whether he’s sufficiently committed to protecting the rule of law to serve in the position at Justice involved in selecting and vetting potential federal judicial nominees. I want to weigh in on this conversation because I know Mark well.

I worked very closely with him when he was serving as Senator Biden’s Chief Counsel on the Senate Judiciary Committee and I was counsel to Senator Howard Metzenbaum. If you’re looking for someone committed to the rule of law, no need to look further. Mark can claim a lifetime of service to advancing the cause of civil rights and civil liberties in this country. As chief counsel to Senator Biden, Mark fought against the confirmation of federal judicial nominees who were not committed to protecting the civil rights and individual liberties of all Americans. He worked tirelessly in his position with Senator Biden to help protect the Civil Rights Commission and to extend the Voting Rights Act.

As counsel on the Senate Intelligence Committee he played a leadership role in the oversight investigation of the FBI abuses in the illegal surveillance and intimidation of Dr. Martin Luther King, Jr. and other civil rights and anti-war activists. He played a key role in the development of FISA, which grew out of that investigation.

As an advisor to Senator and presidential candidate Biden, Mark helped focus on the plight of the shrinking middle class advancing measures such as reforming health care to permit middle class and disadvantaged families to buy into the same health care insurance program available to members of Congress and expanding the availability of health insurance for children and expanding employer based retirement programs.

Mark has the smarts, integrity and values that we need in someone heading this critical office.

PFAW

Obama’s Civil Rights Agenda: LGBT Equality

With George Bush and Dick Cheney finally out of power, our country is returning to its ideals so quickly and in so many ways that it’s dizzying. 

Recognizing the rule of law? Check.  Following the Constitution? Check.  Keeping politics out of law enforcement? Check.  Recognizing our right to know what our own government is doing?  Check. 

What about LGBT equality?  George Bush worked to enshrine discrimination against gay and lesbian Americans into the United States Constitution, supported laws that put gay and lesbian couples in prison for the crime of having sex in their own home, and fought to continue to allow workplace discrimination against LGBT Americans. 

And President Obama?  The White House website spells out President Obama’s agenda for LGBT equality, and it’s pretty terrific.  He: 

  • Opposes a constitutional amendment to prevent gays and lesbians from marrying
  • Supports expanded hate-crime legislation
  • Supports a transgender-inclusive ENDA
  • Supports civil unions (He’s still not with us all the way on full marriage equality, but we’ll keep pushing him on this one)
  • Supports eliminating the heinous Defense of Marriage Act
  • Supports legislation to ensure that same-sex couples have the same federal rights and benefits that opposite-sex married couples have

 But it’s not just the substance of the agenda that’s important:  Where it’s placed on the website tells us a lot. 

Rather than cravenly avoiding LGBT rights altogether or putting them in a category like “social issues” or “cultural issues,” as a number of others do, the White House places them exactly where they belong: as part of our nation’s civil rights agenda.  The Obama Administration is framing LGBT issues in a way that helps progressives set the terms of the conversation. 

The Radical Right dishonestly paints their anti-equality positions as pro-family, pro-values, and pro-religion, a dangerously deceptive framing that the mainstream media tends to blindly accept.  Thus, the Right has long set the terms of the national conversation. 

No more.  Using the bully pulpit of the White House, President Obama can make it clear that LGBT equality is nothing less than a civil rights issue. 

And that framing allows us to more effectively pin the Radical Right down by asking the threshold question:  What specific legal rights that you have should be denied to people who are gay, lesbian, or transgender?

PFAW

Gay but Equal?

By MARY FRANCES BERRY

(From the January 16, 2009 edition of the New York Times)

AS the country prepares to enter the Obama era, anxiety over the legal status and rights of gays and lesbians is growing. Barack Obama's invitation to the Rev. Rick Warren, an evangelical pastor who opposes same-sex marriage, to give the invocation at his inauguration comes just as the hit movie "Milk" reminds us of the gay rights activism of the 1970s. Supporters of gay rights wonder if the California Supreme Court might soon confirm the legitimacy of Proposition 8, passed by state voters in November, which declares same-sex marriage illegal -- leaving them no alternative but to take to the streets.

To help resolve the issue of gay rights, President-elect Obama should abolish the now moribund Commission on Civil Rights and replace it with a new commission that would address the rights of many groups, including gays.

The fault lines beneath the debate over gay rights are jagged and deep. Federal Social Security and tax benefits from marriage that straight people take for granted are denied to most gays in committed relationships. And because Congress has failed to enact a federal employment nondiscrimination act, bias against gays in the workplace remains a constant threat.

Click here to read more (login may be required).

PFAW

It's Our Moment, Let's Make the Most of It!

This Tuesday marks what I hope will be the beginning of a dramatic new direction for our country. The relevance of President-elect Obama's inauguration falling one day after Martin Luther King, Jr. Day is not lost on any of us. The swearing in of the first African American president will be one of the great moments in America's history and a massive leap toward the fulfillment of Dr. King's dream, not only because of Obama's race, but because the movement that swept him into office was born of the American people's desire to pursue a more just path as a nation. That in itself is something that Dr. King would have been proud to have witnessed.

I said that I "hope" this will be the beginning of a big change in direction because it's up to all of us to make sure that change actually happens, to make sure the new administration corrects the last president's worst mistakes in a timely fashion. And it's not just the Obama administration that needs to feel constant pressure from us, it's Congress as well. I've seen reports of senators and representatives showing some reluctance to make many of the bold changes we need. And as expected, we're seeing the resurgence of the Far Right as a backlash to new progressive power. The Radical Right is not only in a position to strengthen its grip on power in the Republican Party, it's ready to pounce on any anti-government sentiment that may bubble up in the coming months and years, especially -- and ironically -- as a result of the economic hard times their very policies have left us with. Long story short: People For the American Way is more needed than ever, and we need your support and your vigilance in the months and years to come.

When a group of activists confronted him shortly after his first inauguration seeking a list of specific reforms, Franklin Delano Roosevelt famously said, "I agree with you. I want to do it. Now make me do it." That is what grassroots democracy is all about -- making our leaders do what's right. January 20 is the end of our eight-year national nightmare, but it's just the beginning of a new chapter in which we must all do our part.

In the first two weeks of 2009, People For's been fighting the good fight -- our long-term efforts on two pay equity bills are paying off and the legislation has passed the House and is making its way through the Senate. And we've been answering the Right's attacks against Attorney General-nominee Eric Holder, whose Senate confirmation hearing I attended yesterday. Let me say that it was VERY gratifying to hear Holder clearly state that he believes waterboarding is torture, that renditions to countries where there reason to believe they will torture is wrong and that he is committed to restoring the DOJ's Civil Rights Division to a position of prominence and effectiveness). After this week's release of the Inspector General's report on politicization in the Justice Department, it's even more apparent that confirming Holder will be a great beginning to undoing that damage.

On the legal front, the Supreme Court handed People For the American Way Foundation (and the First Amendment) a victory by upholding the policy of the Fredericksburg, Virginia, City Council requiring that the official prayers recited at the beginning of its meetings be non-sectarian. Accepting one of the most important cases of the term, it also chose to hear an appeal of Northwest Austin Municipal Utility District No. 1 v. Mukasey, in which People For the American Way is defending the constitutionality of an important provision of the Voting Rights Act.

We couldn't do any of our important work without your steadfast support. And with your continued support, People For the American Way will continue to carry the progressive flag and advocate your values on Capitol Hill.

Right now is a time to celebrate. Have an amazing Inaugural weekend, MLK Day and Inauguration Day. Congratulations to Barack Obama and congratulations, America!

PFAW

Department of Justice Will Actually Uphold the Law!

After 8 years of the Bush Administration, it’s amazing how low our collective standards have fallen. For instance, the idea that Barack Obama has appointed people to the Department of Justice who will uphold the rule of law -- as opposed to wantonly ignoring it for political purposes -- struck me almost too good to be true.

But by any standards the team he’s put together looks top notch. Elena Kagan is clearly the big news, but there’s a lot of depth in the slate of nominees. TAPPED points out:

One particular point of interest: Johns[e]n, the new head of the Office of Legal Counsel, has recently written articles entitled Faithfully Executing the Laws: Internal Legal Constraints on Executive Power and What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses. Given that OLC was a hotbed of torture-justifying and illegal-surveillance-allowing during the last administration, it's nice to see that the new boss has a different set of ideas.

Be still my beating heart!

PFAW

Beyond the Sigh of Relief...

Earlier this week, People For the American Way Foundation hosted -- and I moderated -- a panel at the National Press Club to discuss what the election of Barack Obama means for the future of the Supreme Court and what kind of justices we should be fighting for. The event's title, "Beyond the Sigh of Relief," says a lot in itself, and it's fantastic that our conversation could focus on the prospects for a return to justice on the High Court rather than strategizing about how to forestall complete disaster.

I hope to have video of the full discussion to share with you in a week or two. The next day, Maryland State Senator and Constitutional Law Professor Jamin Raskin (who was on the panel) and I were on Pacifica Radio in a very substantive joint interview on the same topic. You can listen to that segment here.

Sen. Raskin is also the director of the Marshall-Brennan Constitutional Literacy Project and shares my passion for civic education -- I've known and worked with him for years, going back to my time at Justice Talking. The other phenomenal panelists were: Julius Chambers, former director of the NAACP Legal Defense Fund and founder of Ferguson Stein Chambers Gresham & Sumter PA; John Payton, President, NAACP Legal Defense and Educational Fund; and one of the finest Court journalists out there, Dahlia Lithwick, Senior Editor of Slate.

Any conversation about the future of the Court needs to start with acknowledging the voter mandate Obama received on Election Day to appoint judges with a strong commitment to constitutional rights and values. Redefining the conventional wisdom that the Supreme Court is an issue that only the Right Wing cares about, this time it was Obama voters who said that the Court was extremely important to them.

Here were a few quick highlights from the rest of the event:

  • Julius Chambers made some great points about the Court's role in protecting the poor. It's not just disputes over civil rights for minorities, workers rights and environmental protections on which the Court must sometimes weigh in when the government or companies violate constitutional rights. The poor deserve to be protected by the Constitution like we all do, and too often, they certainly do not receive equal justice under the law.

  • There was much discussion about promoting racial and gender diversity on the Court and there was a consensus among us that race, religion, gender and even sexual orientation could be important considerations because they can bring different perspectives to the Court. John Payton in particular stressed just how vital this diversity of perspectives is in having a Court that functions for the best benefit of the people and the law. We also speculated on the pedigrees and career tracks of recent and not so recent nominees -- why should they all come from the corporate world or the major law firms? There are tremendous lawyers working to advance justice at places like nonprofit organizations and unions.

  • Dahlia Lithwick stressed that we need to make sure people know that the judicial philosophies we believe in are based on rigorous interpretation and a sincere love of the Constitution. The public debate over judicial philosophies has too often bought into the Right's claims that so-called "strict constructionism" is the only rigorous approach to the Constitution. But the ideals embodied in both the main articles of the Constitution and the amendments are what John Payton referred to as "aspirational" -- and it's that aspirational view of the law and justice that we subscribe to and that we think President-elect Obama does as well. It's an understanding that the Constitution is a guardian of rights and opportunity for all Americans, including those without much power in our society.

The stimulating conversation left me feeling optimistic about advancing the constitutional principles that have been under attack from right-wing organizations and the Bush administration. After eight years of seeing right-wing ideologues nominated to the federal bench, there is immense opportunity to restore constitutional values. The only thing standing in our way is the Right and the senators who are already gearing up to fight good nominees -- senators like John Kyl (R-AZ), who promised a filibuster of any Court nominee he deemed too liberal... only three days after the election.

People For the American Way will be ready for Sen. Kyl, other right-wing senators and the Right's media echo chamber. Together, we'll make sure President Obama fulfills his mandate to give Americans the Supreme Court justices they deserve.

PFAW

Putting the Justice back in the DOJ

In Washington, we're hearing rumblings that the Right may be looking to start a fight over Attorney General nominee Eric Holder, whose confirmation hearing will be in early January. It's tough to imagine the kind of audacity it would take to challenge Holder's nomination after Attorneys General Ashcroft and Gonzales.

After eight years of being dominated by politicization, cronyism and extremism, the Department of Justice is in desperate need of a good housecleaning. The Department, like the Attorney General, is supposed to defend the rule of law and Americans' constitutional rights. But under the Bush administration, the DOJ has been used as a weapon against constitutional values, used to fight the administration's ideological and political battles.

In the wake of 9/11, John Ashcroft's Justice Department led the Bush administration's relentless assault on civil liberties. The DOJ was on the forefront of the draconian expansion of surveillance and police powers, and contributed heavily to post-9/11 era of extreme government secrecy. Career lawyers at the DOJ were subtly -- and not so subtly -- pushed out in favor of attorneys more politically and ideologically aligned with the administration. The Civil Rights Division was completely politicized and instead of using its resources to protect voters' rights (by enforcing the Voting Rights Act among other things), the DOJ waged an attack on voting rights by supporting disenfranchising policies like Georgia's restrictive voter ID law. The Department also exploited the 'widespread voter fraud' myth for politically motivated witch hunts -- part of a larger trend of selectively targeting political and ideological opponents for investigation and prosecution.

And how can we forget the Gonzales era at the DOJ! The Attorney General is supposed to be the people's lawyer, but Gonzales was more the president's bag man. The problems that existed under Ashcroft continued or got worse. As more and more news came out about the NSA's illegal warrantless spying on Americans, the torture of U.S. detainees, legally questionable military tribunals and other subversions of the rule of law, we found out that the DOJ had expressly signed off on these administration policies and in some cases even supplied the legal and intellectual underpinning out of the Department's Office of Legal Counsel (OLC). And when a scandal broke over the firing of U.S. attorneys, it became clear exactly how politically motivated hiring and firing practices had been at the DOJ, which evidently was staffed with a disproportionate number of graduates of Pat Robertson's law school (including one of the people tasked with the hiring/firing)!

Attorney General Mukasey has been arguably better than his two predecessors, but following the records of Ashcroft and Gonzales, that's not very hard. Eric Holder is a stellar choice: smart, capable and able to lead the DOJ in a new direction. But he will have his work cut out for him and he'll need help from people like you and me. First, we need to make sure he's confirmed, and that could mean a campaign to defeat whatever attacks right-wing senators throw at him. Then, because of the politically skewed hiring practices, he's going to need the support of the people to make dramatic changes at one of the government's most important agencies.

For eight years, the Department of Justice -- a government agency with a rich history of enforcing civil rights and the rule of law -- has served the worst ideological and partisan impulses of the Bush administration. The era of overzealous ideologues and partisans like Ashcroft and Gonzales is coming to an end.

Thank goodness.

But now it's time to dig in our heels and do our part to put the justice back in the Department of Justice. I hope you don't mind if I call on you for help in the coming months.

PFAW