torture

Sen. Diane Feinstein Charges CIA Obstruction of Senate Investigation

Yesterday, Sen. Diane Feinstein made an extraordinary 40-minute speech on the Senate floor denouncing the Central Intelligence Agency for obstructing congressional oversight by withholding information, intimidating staff involved in a congressional investigation, and removing documents from computers being used by the Senate Intelligence Committee staff.  Feinstein, who chairs the Intelligence Committee, has been a long-term public advocate for the intelligence community. CIA Director John Brennan is disputing Feinstein’s charges.

At the center of the dispute with the CIA is a years-long investigation of the detention and interrogation programs carried out in the wake of the 9/11 terror attacks. But the core constitutional issue being raised by Sen. Feinstein is the ability of Congress, operating under rules agreed to by the CIA, to conduct an oversight investigation without being spied on and having its investigation obstructed by the agency.

Sen. Patrick Leahy said he could not think of any more important speech during his many years in Congress. Sen. Mark Udall, who is also a member of the Intelligence Committee, praised Feinstein for “setting the record straight today on the Senate floor about the CIA’s actions to subvert congressional oversight.”

People For the American Way President Michael Keegan released a statement:

“We applaud Sen. Feinstein for voicing publicly her serious concerns about the CIA’s alleged obstruction of congressional oversight. Congress’s ability to provide oversight for our nation’s intelligence gathering operations isn’t incidental to the work they do—it’s essential. If information was withheld and intimidation tactics were used to deter investigations, this would be a gross abuse of power.

“We depend on Congress’s ability to conduct these investigations in order to protect the separation of powers in our government as well as the fundamental civil liberties guaranteed by our Constitution. We commend Sen. Feinstein for speaking out and calling on the CIA to cooperate rather than obstruct congressional oversight."

PFAW

Scalia Interview Reminds Us of the Stakes This November

Justice Antonin Scalia gave a TV interview last night on CNN in which he reminded Americans of his right-wing ideology. Since Mitt Romney has said he would nominate Supreme Court Justices like Scalia if elected president, the interview also served as a warning to Americans of what's at stake this November. Talking Points Memo summarizes some of the interview's highlights:

Scalia defended Citizens United, which took elections from the people and handed them to often-secretive powerful interests that drown out the voices of non-millionaires. He added, however, that people are "entitled" to know who is financing the messages they are bombarded with.

In an era when Roe v. Wade has already been watered down, Scalia repeated his belief that women have no constitutional right to abortion at all. "[M]y only point is the Constitution does not say anything about it. It leaves it up to democratic choice." (That would be news to those who adopted the Ninth Amendment specifically to counter future assertions that the rights specifically mentioned in the Constitution are a ceiling, not a floor.)

Scalia also stated his opinion that torturing an innocent person taken from a battlefield isn't cruel and unusual punishment prohibited by the Eighth Amendment. "I don't think the Constitution addressed torture, it addressed … punishment for crimes."

CNN adds another highlight:

When asked if he had ever broken the law, the justice said, "I've had a few speeding tickets, though none recently."

Let's hope for his sake that the traffic stop didn't lead to an unwarranted and humiliating strip search, as occurred to Albert Florence. When Florence challenged the strip search as unconstitutional, Scalia was part of the conservative 5-4 majority that denied his claim.

Do we really want a president who looks to Antonin Scalia as a model to emulate?

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After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

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Sanctimonious Santorum Continues his Assault on Women’s Rights

Rick Santorum, the former senator from Pennsylvania who announced his candidacy for president on Monday, may not have a great shot at winning the GOP nomination, but might very well succeed in moving the Republican debate on social issues even further to the right than it has already become.

Today, Think Progress caught Santorum on video expressing a truly extreme position on abortion rights. Discussing his role in bringing about the federal late-term abortion ban, Santorum dismissed exceptions meant to protect the health of the mother as “phony” and claimed that such exceptions would render the ban “ineffective”:

Heartless remarks like these have earned Santorum the reputation as one of the most hard-right politicians on the national stage. Today, People For’s Michael Keegan posted a retrospective of Santorum’s career in the Huffington Post, writing about Santorum’s history of making dehumanizing remarks about women, gays and lesbians, Muslims, and victims of sexual abuse:

Santorum has a social issues record to make the Religious Right cheer. He made a name for himself on the national scene with his attacks on gay rights, most notably in a 2003 interview comparing gay relationships with "man-on-dog" sex. (In the same interview he argued that the Constitution does not protect a right to privacy. Recently he said that allowing loving gay couples to adopt children is "trying to defy nature" and should be illegal, as should gay marriage. He says that the Obama administration's decision to stop defending the Defense of Marriage Act in federal court meant that the "free exercise of religion will be eviscerated."

Although, while in the Senate, Santorum supported the occasional pro-choice Republican, he calls Roe v. Wade a "monstrosity" and supports criminalization of abortion, which he says is the reason Social Security is in trouble. He backs right-wing attacks on funding for Planned Parenthood's family planning services, actively taking part in the right-wing propaganda campaign against Planned Parenthood. Santorum has slammed the Griswold decision, in which the Supreme Court recognized a constitutional right to privacy and overturned a state ban on contraception, as a "constitutional wrecking ball."

Santorum gave Religious Right activists a powerful tool for pushing religion into public school classrooms when he sponsored an amendment to the "No Child Left Behind" law that encouraged the teaching of intelligent design in science classes. The amendment, written in part by the creationist Discovery Institute, became a force behind creationists' bogus "teach the controversy" strategy. Santorum wrote in 2002 that "Intelligent Design is a legitimate scientific theory that should be taught in science classes." Scientists and courts disagree.

Santorum has been a severe critic of Islam from his perch at the "America's Enemies" program at the right-wing Ethics and Public Policy Center. He says Islam is incompatible with western civilization because Shariah is both a civil code and a religious code. But he also says of Christians that "it is our obligation" to make civil law in America "comport with God's laws."

Santorum has tried to get attention to his desire to be the second Catholic president by slamming the first, saying he was "appalled" by John F. Kennedy's "radical" support for the separation of church and state - a centerpiece of Kennedy's vision of America. Speaking of the Kennedys, Santorum criticized church officials for praising former senator Ted Kennedy at his funeral, saying there was "no excuse" for it and arguing that it was harmful to send the message that it was okay for Catholic politicians to dissent from church teachings.

Although Santorum has been quick to slam progressive Catholics for not hewing closely enough to the doctrine of Church hierarchy, he's shown no compunction in casting aside Church teaching when it conflicts with his extreme ideology, as he did when repeatedly supporting "enhanced interrogation" techniques like waterboarding -- which has been clearly labeled "torture" and "an intrinsic evil" by the Catholic Church. Santorum blamed the church's sex abuse scandal on the liberal political culture of Boston:

"Priests, like all of us, are affected by culture. When the culture is sick, every element in it becomes infected. While it is no excuse for this scandal, it is no surprise that Boston, a seat of academic, political and cultural liberalism in America, lies at the center of the storm."

PFAW

Rick Santorum: The Hapless Holy Warrior Starts Another Crusade

Former Senator Rick Santorum formally launched his bid for the White House today. Given that Santorum's last run for reelection resulted in a crushing 17-point defeat, and given that his poll numbers are still in the low single digits in spite of his having been running a de facto campaign for the past year and a half, it would seem that Santorum's race is mostly a sign of the self-deceiving wishful thinking that overtakes people who believe they are meant to be president -- or in Santorum's case, who believe God truly wants them to be president.

Indeed, Santorum's campaign has already won him enough mockery that Pittsburgh Post-Gazette columnist Tony Norman recently dubbed him "the Rodney Dangerfield of American politics," saying he gets "as little respect as support."

Part of Santorum's problem is simply that he comes across to many people as annoyingly self-righteous. Norman writes, "His biggest problem is that he reminds everyone, including Republicans, of the annoying kid in Sunday school who memorizes all 66 books of the Bible so he can recite them in reverse order for the old ladies at church." In 2009, as Santorum's plans to run were becoming more apparent, journalist Matthew Cooper wrote, "My favorite Santorum anecdote actually comes from Bob Kerrey. After Santorum denounced Sen. Mark Hatfield, the Oregon Republican, for his opposition to the balanced budget amendment to the Constitution, the Nebraska Democrat was asked what he thought. 'Santorum, that's Latin for a--hole.'"

Fans on the Far Right

In spite of Santorum's huge negatives, he has his cheerleaders among right-wing activists and pundits who think he could still emerge from the unimpressive GOP pack.

Last month, right-wing Catholic activist Keith Fournier published a column that was essentially a mash note, declaring Santorum the winner of the South Carolina debate, calling his demeanor "Kennedy-esque," and gushing that Santorum's "courage to lead" is "what this Nation needs."

In February, columnist George Will praised Santorum as a "relentless ethicist" and said the GOP needs someone who can energize social conservatives who "are feeling neglected and are looking for someone like Santorum." To those who thought his loss would make him unelectable, Will asks, "Well, was Richard Nixon defunct after losing the California gubernatorial race in 1962?" I wonder if Santorum welcomed that comparison.

In January, when Santorum was criticized for slamming Obama's support for abortion in racial terms -- saying, "I find it almost remarkable for a black man to say 'now we are going to decide who are people and who are not people'" -- The National Review's Kathryn Jean Lopez praised Santorum for raising the issue of abortion in the black community.

The Christian Broadcasting Network's David Brody also praised Santorum back in January, before Brody's crush on Donald Trump burst into full flower.

Love him or hate him, let's be clear about Rick Santorum. He doesn't hold back. He doesn't mince words and conservative Christians and Catholics find this quality to be his best attribute. If and when he dives into the 2012 GOP mosh pit, he's going to be the guy that won't hold back and in the process he'll put some of these other 2012 contenders on the spot by bringing up issues that everybody whispers about but rarely talks about in public.

Hard Right Record

Santorum's far-right rhetoric and policy positions are what keep hope alive among some of his supporters. He is campaigning as a hard-right candidate who can appeal to every stripe of conservative. And he certainly has the record to back up that claim.

Speaking to a Tea Party gathering in February, Santorum embraced an extreme view of the constitutional separation of powers and the role of the federal judiciary, reportedly saying that Congress has the power and the right to declare what is constitutional or not. He said Congress has the power to disband the federal courts and that "I would sign a bill tomorrow to eliminate the 9th Circuit [Court of Appeals]. That court is rogue. It's a pox on the western part of our country." He told the Conservative Political Action Conference in February that "America belongs to God" and the judiciary has no right to "redefine" life or marriage.

He's a fierce critic of federal health care reform legislation, saying it will "destroy the country," portraying it as the equivalent of drug dealing and telling a group of Christians that getting hooked on health care would make them "less than what God created you to be." He has said that "if Obamacare is actually implemented," then "America as we know it will be no more."

Today, after he announced his candidacy, Santorum declared that American troops at D-Day had been fighting for Rep. Paul Ryan's plan to effectively end Medicare. "Those Americans risked everything so they could make that decision on their health care plan," he said.

He pushes the Tea Party's small-government ideology, saying the problems in the housing industry will be resolved by "getting regulators to back off" and letting the markets work their magic. Similarly, he says the answer to creating jobs is to get rid of all the government intervention that he believes is strangling businesses -- health care reform, financial regulation, the Environmental Protection Agency, and more.

In a bid to salvage his sinking 2006 reelection campaign, Santorum turned to bashing immigration reform and "amnesty" for illegal immigrants.

Santorum has a social issues record to make the Religious Right cheer. He made a name for himself on the national scene with his attacks on gay rights, most notably in a 2003 interview comparing gay relationships with "man-on-dog" sex. (In the same interview he argued that the Constitution does not protect a right to privacy. Recently he said that allowing loving gay couples to adopt children is "trying to defy nature" and should be illegal, as should gay marriage. He says that the Obama administration's decision to stop defending the Defense of Marriage Act in federal court meant that the "free exercise of religion will be eviscerated."

Although, while in the Senate, Santorum supported the occasional pro-choice Republican, he calls Roe v. Wade a "monstrosity" and supports criminalization of abortion, which he says is the reason Social Security is in trouble. He backs right-wing attacks on funding for Planned Parenthood's family planning services, actively taking part in the right-wing propaganda campaign against Planned Parenthood. Santorum has slammed the Griswold decision, in which the Supreme Court recognized a constitutional right to privacy and overturned a state ban on contraception, as a "constitutional wrecking ball."

Santorum gave Religious Right activists a powerful tool for pushing religion into public school classrooms when he sponsored an amendment to the "No Child Left Behind" law that encouraged the teaching of intelligent design in science classes. The amendment, written in part by the creationist Discovery Institute, became a force behind creationists' bogus "teach the controversy" strategy. Santorum wrote in 2002 that "Intelligent Design is a legitimate scientific theory that should be taught in science classes." Scientists and courts disagree.

Santorum has been a severe critic of Islam from his perch at the "America's Enemies" program at the right-wing Ethics and Public Policy Center. He says Islam is incompatible with western civilization because Shariah is both a civil code and a religious code. But he also says of Christians that "it is our obligation" to make civil law in America "comport with God's laws."

Santorum has tried to get attention to his desire to be the second Catholic president by slamming the first, saying he was "appalled" by John F. Kennedy's "radical" support for the separation of church and state - a centerpiece of Kennedy's vision of America. Speaking of the Kennedys, Santorum criticized church officials for praising former senator Ted Kennedy at his funeral, saying there was "no excuse" for it and arguing that it was harmful to send the message that it was okay for Catholic politicians to dissent from church teachings.

Although Santorum has been quick to slam progressive Catholics for not hewing closely enough to the doctrine of Church hierarchy, he's shown no compunction in casting aside Church teaching when it conflicts with his extreme ideology, as he did when repeatedly supporting "enhanced interrogation" techniques like waterboarding -- which has been clearly labeled "torture" and "an intrinsic evil" by the Catholic Church.

Santorum blamed the church's sex abuse scandal on the liberal political culture of Boston:


Priests, like all of us, are affected by culture. When the culture is sick, every element in it becomes infected. While it is no excuse for this scandal, it is no surprise that Boston, a seat of academic, political and cultural liberalism in America, lies at the center of the storm.


Obama as Enemy

At least one columnist has suggested that Santorum is angling for a VP spot, where he would serve as the GOP campaign's attack dog. He has repeatedly demonstrated his willingness to savage President Obama in the most extreme terms. Obama he says, does not have "a love of this country and an understanding of the basic values and wants and desires of its people." If Obama is reelected, he says, "Democracy and freedom will disappear." Santorum says Obama's talk about his faith is "phony" because the president, like other liberal Christians, has "abandoned Christendom" and has no "right to claim it." In fact, he says, Obama and "the left" are actively seeking to "destroy the family and destroy the Church" because that is the only way they can "be successful in getting socialism to be accepted in this country and that's what their objective is." During the 2008 campaign, Santorum was declared one of Keith Olbermann's "Worst Persons in the World" for continuing to spread the right-wing lie that Obama "won't wear the American flag pin."

When President Obama criticized cable news, Santorum ridiculously portrayed it as a prelude to tyrannical censorship: "This reminds me of what Hugo Chavez is doing down in Venezuela, trying to shut down the voice of opposition in the media." He says Obama "doesn't believe in the foundational principles that made this country great, which is limited government and free people." He said his own grandfather came from fascist Italy to a country that would allow him to be free: "That's the kind of change we need in Washington, DC."

In an April 28, 2011 foreign policy speech at the National Press Club, Santorum declared that "unlike President Obama I believe we were a great country even before the Great Society Programs of the 1960s." He went on to say, "Freedom has been our watchword, our anchor and our moral guide for nearly every cause both here and abroad. But today we have lost this mission because our president doesn't believe in it." After another (now-GOP-requisite) slam on Obama for not believing in American exceptionalism, Santorum slammed Obama for not doing more to support protesters in Iran: "We sided with evil because our president believes our enemies are legitimately aggrieved and thus we have no standing to intervene." Last year Santorum reportedly told a Pennsylvania crowd "that Obama seeks to make the United States like Europe, a continent whose citizens have turned their backs on faith and grown selfish, and where governments bestow rights upon the citizenry, rather than a place where all are born with God-given rights."

Violating Reagan's 11th Commandment

One reason Santorum might not be very popular in spite of his reliably right-wing record is that he is a habitual violator of Ronald Reagan's 11th Commandment. Santorum seems quite happy to speak ill of his fellow Republicans. He has slammed Romney as "Obama's running mate" (a reference to Romney's support for health care reform in Massachusetts) and criticized Newt Gingrich for criticizing Paul Ryan.

During the 2008 campaign, he repeatedly criticized John McCain. After pledging that he would never support McCain, he tepidly endorsed him after Sarah Palin joined the ticket. Santorum even wrote a snide column after McCain's loss predicting (wrongly) that McCain would seek historical redemption by leading the charge in Congress to help Obama move his agenda.

One of Santorum's less-successful slams on a fellow Republican came when he criticized Sarah Palin for not attending the Conservative Political Action Conference and suggested that her duties as a mom to five kids may have made her too busy. Palin in turn suggested that Santorum might be a "knuckle-dragging Neanderthal."

God's Candidate?

Santorum sees politics in spiritual terms. He says that government gets bigger and more intrusive without a "moral consensus" to guide society. In 2008 he told faculty and students at right-wing Ave Maria University, "This is not a political war, it is not a cultural war; it's a spiritual war." Santorum suggested that his opponents were agents of Satan: "The Father of Lies has his sights on what you would think the Father of Lies would have his sights on -- a good, decent, powerful, influential country: the United States of America." He warned the students that if they signed up for God's army, "you'll be ridiculed and you'll lose most if not every one of your battles. But you know who's going to win in the end, so you warrior on happily."

The Campaign Limps Along

Last spring, Santorum said he saw "an opening for someone who can unite the various primary factions -- economic libertarians, party establishment types and cultural conservatives," according to CBS News' Marc Ambinder. But after more than a year of campaigning, Santorum is polling at just two percent among Republicans.

Santorum is unfazed, saying that his poor showing in national polls is only because he's focusing on important early states of Iowa, New Hampshire, and South Carolina, where he won a GOP straw poll earlier this year. Though to keep that win in perspective, Santorum was the only candidate to show up to the GOP dinner and took 150 votes out of the 408 cast.

Cross posted on The Huffington Post

It's hard to predict what could happen in the GOP primary, but at this point, Santorum's barely-limping-along campaign seems in need of divine intervention.

PFAW

First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

PFAW

Dawn Johnsen Heads Back to Indiana

“The one thing you don’t want people saying at your funeral is, ‘She went to her grave with her options open.’” That’s Dawn Johnsen, in a recent speech at the American Constitution Society, proudly declaring that she has no regrets for standing on her principles throughout her legal career, even those principles were used by the GOP to attack and eventually defeat her nomination to head the Justice Department’s Office of Legal Counsel.

Today, NPR’s Morning Edition produced a great segment on Johnsen (including some commentary from People For’s Marge Baker).

You can listen to the whole thing on NPR’s website.

Johnsen withdrew her nomination in April after spending well over a year in nomination limbo, attacked from the right over her history of supporting a woman’s right to choose and opposing Bush Administration torture policies. She was, to say the least, highly qualified. It’s a testament to her integrity that she has refused to back down from any of her statements or principles—even those that didn’t prove to be politically expedient.
 

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Dawn Johnsen on Caution and Principle

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

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

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

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

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

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

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

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Who Will Make Amends to Maher Arar?

Yesterday, the Supreme Court declined to hear the case of Maher Arar, a Canadian citizen who the US detained in 2002 and sent to Syria to be imprisoned and tortured for a year—without ever being charged with a crime.

In an article for the New York Review of Books, David Cole, one of Arar’s lawyers, outlines the unconscionable treatment of Arar and the very different responses of the Canadian and US governments when it came to light:

Canada responded to Arar’s case as a nation who has wronged a human being should. It established a blue-ribbon commission to investigate his case, which wrote a 1,100-page report fully exonerating Arar, and faulting Canadian officials for erroneously telling US officials that Arar was the target of an investigation into possible al-Qaeda links. In fact, Arar was merely listed as one of many persons “of interest” to the investigation, because he was thought to know one of the individuals who was targeted. The commission found, however, that Canadian officials did not know that the United States was planning to send Arar to Syria. That decision was made by US officials with the Syrians and not shared with the Canadians.

Canada, in other words, played a relatively small part in Arar’s injuries, as compared to the United States. Yet Canada’s Parliament issued a unanimous apology, and the government paid Arar $10 million (Canadian) for its role in the wrong done to him.

Here in the United States, the response could not have been more different. US officials have never apologized to Arar. They persist in leaving him on a “no-fly” list, despite the fact that Canada has cleared him of any suspicion, much less wrongdoing. And when we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution.

Because the Supreme Court won’t hear Arar’s case, he doesn’t have any more hope of recourse from the courts. As Cole points out, the duty to make amends to Arar lie in the hands of the President and Congress. And, perhaps more importantly, it is their responsibility to make sure what happened to Arar never happens again.

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Dawn Johnsen Speaks Out on the Office of Legal Counsel

Dawn Johnsen, the law professor who was forced in April to withdraw her nomination to head the DOJ’s Office of Legal Counsel, has written a forceful op-ed in today’s Washington Post. Johnsen, an exceedingly qualified candidate who was the victim of a fifteen month Republican obstruction effort, writes that the President and Senate need to quickly install a new OLC head—and to pick someone who will lead the office in an honest and nonpartisan way:

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

Johnsen is right that the OLC should be led by a fierce advocate of the rule of law—someone like Johnsen herself. We hope that the debate over the next OLC nominee will, unlike the last debate, reflect the importance of this qualification.

 

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Judiciary Committee Hearing on OPR Report

On Friday, the Senate Judiciary Committee held hearings on the recently-released report by the Justice Department’s Office of Professional Responsibility (OPR).  The Office had been tasked with assessing whether lawyers in the Bush Office of Legal Counsel had acted unethically in crafting legal memoranda justifying torture.

Although the OPR report concluded that John Yoo and Jay Bybee had demonstrated “professional misconduct,” their recommendation for sanctions was overruled by Associate Deputy Attorney General David Margolis, who acknowledged that it was a close question but concluded that the two had exercised “poor judgment.

As we pointed out, regardless of the final recommendation, the detailed reports absolutely affirm that embattled nominee Dawn Johnsen, who has been waiting for more than a year to be confirmed to head OLC under Attorney General Eric Holder, was correct in her criticisms of the “torture memos” issued by the Bush OLC. 

Rather than being pilloried for her legitimate criticisms of the Bush OLC’s failure to respect the rule of law, Johnsen should be celebrated for extraordinarily valuable process she led with 19 former OLC lawyers in fashioning principles to guide OLC’s work going forward.

Those principles, by the way, have garnered support across the political spectrum, including former Attorney General Alberto Gonzales, Timothy Elliott Flanigan (nominated by Bush to be Deputy Attorney General), and former OLC head Steven Bradbury.

At the hearings, Senator Leahy noted that Attorney General Holder has been hampered in fully reforming OLC as Johnsen’s confirmation continues to be obstructed by Republicans. She should be confirmed without further delay.

PFAW

John Yoo versus Reality

Via The San Francisco Chronicle, it seems that the latest filing by John Yoo's lawyer— in a case brought by a prisoner who was illegally detained and tortured based on Yoo’s advice—has all the hallmarks of one of Yoo’s own briefs: it’s slipshod, morally questionable and utterly unsupported by the facts.

Take this assertion, for instance:

[Miguel Estrada, Yoo’s lawyer] also cited the Justice Department's report last week concluding that Yoo committed no professional misconduct in his memos.

As the Chronicle points out, Estrada failed to mention that that the Office of Professional Responsibility concluded that Yoo (along with now-Federal Judge Jay Bybee) demonstrated “professional misconduct” and ignored legal precedents.  Even the memo prepared by Associate Deputy Attorney General David Margolis, who ultimately attributed Yoo’s and Bybee’s actions to “poor judgment,” is “far from a vindication for John C. Yoo and Jay S. Bybee's shamefully narrow interpretations of laws against torture” according to the Los Angeles Times.  Margolis, while ruling out the harshest punishment for Yoo, says that debate over whether “Yoo intentionally or recklessly provided misleading advice to his client” is a “close question.”  Not exactly a ringing endorsement.

In fact, anyone who has actually read the report or Margolis’s memo knows that they paint a damning picture of Yoo’s actions.  Estrada’s claim that they exonerate Yoo is wishful thinking at best.

Next up is Estrada’s shot at guidelines drawn by a group of OLC alumni, headed by Dawn Johnsen, to help the Office move forward after the torture memos were made public.

In Friday's filing, Yoo's lawyer, Miguel Estrada, said Johnsen's guidelines reflect "only partisan disagreement with the policies of the previous administration."

How Estrada can deliver such an allegation with a straight face is difficult to fathom.  The idea that only partisans could oppose Yoo’s torture memos simply isn’t borne out by the facts.  First off, Republican Lindsey Graham didn’t seem to be a big fan of Yoo’s opinions, saying:

The guidance that was provided during this period of time, I think will go down in history as some of the most irresponsible and short-sighted legal analysis ever provided to our nation's military and intelligence communities.

Even putting aside Graham’s criticism of Yoo’s memos, Johnsen’s statement of principles was endorsed by Attorney General Alberto Gonzales, Deputy Attorney General Timothy Flanigan, and Acting OLC head Steven Bradbury in testimony to Congress.

But perhaps most galling is Estrada’s claim that Yoo remains a "respected legal scholar."

Honorifics aside, most “respected legal scholars” aren’t being investigated for war crimes by our allies.  Most don’t find their colleagues debating about whether or not ones tenure should be revoked.  And, notwithstanding the Margolis memorandum, the Office of Professional Responsibility doesn’t usually recommend that its findings of misconduct be referred to the state bar disciplinary authorities.

Estrada’s defense of Yoo is logically indefensible and divorced from even a passing resemblance to reality.  In short, it’s a brief only John Yoo could love.

PFAW

Dawn Johnsen’s Year in Review

January 5th might not be circled in red on your calendar (unless, of course, you’re celebrating Twelfth Night) but for some of us it’s become a noteworthy, if not entirely happy, anniversary.

One year ago today, then-President-elect Obama announced that he would nominate Indiana University law professor Dawn Johnsen to head the Justice Department’s Office of Legal Counsel.

OLC doesn’t traditionally grab headlines, but under the Bush Administration leadership of lawyers like John Yoo and Jay Bybee, it was ground zero for creating slipshod legal justifications for torture, rendition and abuses of executive power. So it was a breath of fresh air to hear that Obama had chosen a woman with impeccable qualifications and unimpeachable integrity to restore the reputation of the office.

But now, a year later, Dawn Johnsen is still waiting for a vote in the Senate, and Republicans (who can’t seem to find a nomination they don’t want to obstruct) have gone so far as to use the end of the term to send her nomination back to the White House. She’ll be renominated later this month, but then she’ll have to make yet another trip through the Judiciary Committee.

Dawn Johnsen certainly isn’t the only nominee who’s been caught up in GOP delay, but she’s spent more time in confirmation purgatory than anyone else.

The votes are there to confirm Johnsen and have been for some time. Any more delay is inexcusable. President Obama deserves to have his team in place—especially in an office as important as the OLC.

Take a minute to sign our petition calling on the Senate to confirm Dawn Johnsen.
 

PFAW

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

Good Questions for Jay Bybee

Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”

Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”

These are excellent questions. The American public deserves to have the answers.

Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004, concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month, authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.

PFAW

Victory for the Rule of Law

Great news on the accountability front: Today, a unanimous three-judge panel of the Ninth Circuit Court of Appeals gave the thumbs-down to the blanket invocation of the pernicious "state secrets" doctrine.

According to the San Francisco Chronicle:

A federal appeals court rebuffed the Obama administration's assertion of secrecy today and reinstated a lawsuit by five men who say a Bay Area subsidiary of Boeing Co. helped the CIA fly them to foreign countries to be tortured.

A lawyer from President Obama's Justice Department argued to the court in February that the issues surrounding the "extraordinary rendition" program, including government-sanctioned interrogation methods and the company's alleged connection to the CIA, were so sensitive that the very existence of the suit threatened national security.

The Bush administration had taken the same position and persuaded a federal judge in San Jose to dismiss the suit.

In today's ruling, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said the government and the company could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the Bay Area company to defend itself, the court said.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Citing last year’s Boumediene Supreme Court case, the court writes that

while security depends upon a sophisticated intelligence apparatus, it subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. [internal quotations omitted]

So now the lawsuit against the Boeing subsidiary can proceed. Perhaps it will see some light shed on the Bush Administration's frightening "extraordinary renditions" program.

In a nation governed by the rule of law, we cannot allow the government to shield its illegal actions from judicial scrutiny simply by claiming -- with no supporting evidence required -- that allowing a lawsuit will threaten national security. This "state secrets" doctrine was one of the many ways the Bush Administration evaded responsibility for its own lawbreaking, slammed the courthouse doors on victims of injustice, and arrogated extra-constitutional power to the president. Sadly, in the Ninth Circuit case, the Obama Justice Department took the same approach to this as did Bush's.

Those who knowingly sent people abroad to be tortured by foreign governments, just like those who ordered and enabled torture American style, must face the consequences. Otherwise, America will have become a far different nation than the one that I have always loved.

PFAW

We couldn't have said it better

Republicans are trying to paint OLC nominee Dawn Johnsen as "out of the mainstream." Rachel Maddow turned the tables on them last night in an interview with Salon's Dahlia Lithwick. Lithwick noted that Republicans are creating a storm — threatening to filibuster — because of two things: First, that Johnsen was ahead of her time in pointing out what everyone now knows about how bad the OLC memos were, and second, that she's pro-choice... hardly positions that place her "out of the mainstream" since, unfortunately for Republicans, those views are shared by most Americans.

A bit from the interview:

Lithwick: This is a dry run for future confirmation wars. ... She's been very vocally critical of the work that happened at the OLC in the Bush administration. ...

I think this has nothing really to do with Dawn Johnsen It's sort of a little warm up, a practice run for when they REALLY go after someone in a confirmation hearing for the courts. ...

Maddow: At Johnsen's confirmation hearing there was one comment from Republican Senator Jeff Sessions that stuck with me because he accused her of, and I'm quoting here, "blogging, advocating, and speeching for the opposite sides." Essentially he's saying, "She's got a side, she has known positions on things." Does it make any reasonable sense that would be an objection to an OLC candidate?

Lithwick: Well, it's doubly paradoxical if you think about it, because the thing she was blogging and "speeching" about was torture! It was how bad OLC was and how sloppy their work was. So it puts the Republicans in this awful position of having to say "Because the work they did in the Bush OLC was terrific. How dare they call it into question?" ... This is an issue on which she was very clear — before the rest of us were clear — that the memos were bad, the lawyering was sloppy, and that torture was torture.

And video:

Visit msnbc.com for Breaking News, World News, and News about the Economy

There was also a segment at the beginning of the show about impeaching Jay Bybee that was good. Watch it here.

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

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

Obama DOJ Invokes State Secrets For Second Time

This Washington Post recently had a story on a second instance of the Obama Department of Justice invoking "state secrets" in an effort to shut down a lawsuit challenging violations by the Bush Administration of individuals' constitutional rights.

The first instance, in February, came in the case of Mohamed et al. v. Jeppesen, a suit challenging a company's alleged participation in the rendition of terrorism suspects to countries where they suffered torture. At that time, People For the American Way decried the "blow to our much-needed efforts to restore justice." This time the lawsuit involves allegations by the al-Haramain Islamic Foundation that the federal government used warrantless wiretaps to gather information on the charity's board members and attorneys in violation of their due process and free speech rights.

The Post story reports that in addition to invoking the state secrets privilege to terminate the lawsuit -- thereby denying the charity its day in court -- the Justice Department is also threatening to remove the documents from the district court's custody to keep them out of the hands of the charity's lawyers. No doubt there must be a careful balancing of competing interests in these kinds of cases -- legitimate efforts to protect our nation's security versus holding the government accountable for violations of individuals' constitutional rights. But I must say the balancing that appears to be going on in these instances is making me pretty nervous.

PFAW