Author Archive
Habeas Corpus
Today’s Washington Post has this to say about the detainee bill that is working its way through the Congress:
Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention, a right known as habeas corpus.
House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees.
Cato Institute adjunct scholar Richard Epstein, criticized the proposals to curtail habeas corpus in this statement to the Senate Judiciary Committee a few days ago.
For additional background on the writ of habeas corpus, read this and this.
Bush, McCain, and Prisoner Policy
Today’s Washington Post has an editorial entitled “Rush to Error.” The editorial says that Congress should not be pushed into approving the Bush-McCain accord with respect to the handling of prisoners. The Post is right.
The legal issues can get pretty complicated, but it may be useful to take a few steps back from the nitty-gritty to gain perspective. Last June, the Supreme Court issued a landmark ruling in a case called Hamdan v. Rumsfeld. The Court ruled that President Bush’s plan for trials before military tribunals was unlawful and that Common Article III of the Geneva Convention applied to all prisoners in U.S. custody. Thus, as a result of Hamdan, this is the status quo:
1. There will be no trials before special military tribunals.
2. The CIA “program” of secret arrests, secret detentions, and secret interrogation tactics is shut down.
3. There is a chance that there might be a war crimes prosecution someday because the War Crimes Act made it a crime to violate Common Article III of the Geneva Convention.
The Bush administration abhors the status quo and that is why it has been seeking legislation from the Congress in recent weeks. The proposed legislation will do at least three things:
1. It will revive a policy of trying persons before special military tribunals. (The Supreme Court ruling simply said that Bush could not set up the courts on his own authority).
2. It will, in effect, revive the CIA “program” of “alternative interrogation procedures.”
3. It will immunize past actions of government agents from criminal prosecution.
Given all this, the best thing that can happen is for Congress to simply adjourn.
Doublespeak and the War on Terror
Last week, Cato published my paper “Doublespeak and the War on Terrorism.” Of course, this has not kept President Bush from using doublespeak.
In his televised address this week, Mr. Bush said that all members of the U.S. military are “volunteers.” Not so. We do not have the large-scale conscription of civilians, but we do have “stop-loss” orders from the White House, which means soldiers that have fulfilled the terms of their enlistment contracts may not leave military. The men and women who wanted to return to civilian life after serving their term of service are not “volunteers.” In military circles, the stop-loss order is known as the “backdoor draft.”
Fortunately, more people are calling attention to such misuse of language by government. Go here for a column by Eugene Robinson of the Washington Post. Go here for a column by Dick Meyer of CBS News.
We’ll never be able to stop the government from engaging in doublespeak because the government is constantly engaging in mischief. But if we’re vigilant about it, we can keep the government in check.
Judge Says NSA Wiretapping Program Unconstitutional
The ACLU brought a constitutional challenge to the NSA’s controversial wiretapping program several months ago and the judge has now ruled the NSA program to be unconstitutional (click on the 06-10204 pdf). This is just the initial round of what will likely be a long legal fight. The government will appeal and the battle will move to an appeals court, and then possibly to the U.S. Supreme Court.
Feds Lock Up Blogger
The grand jury was created to check the government, but it has been turned into a prosecutorial bulldozer that now tramples over civil liberties.
Item: Josh Wolf, 24, is a freelance journalist and blogger. He wanted to be left alone, but the feds have locked him up because he will not help them investigate the crimes of other people. We generally have the freedom to help the police or to decline. It is up to us to decide. Not so with grand juries. Cooperate–or go to jail. As Mr. Wolf was escorted to his jail cell, the judge intoned that he was not being punished. Rather, the government was merely housing Mr. Wolf with suspected criminals so that he might “change his mind.” Mr. Wolf cannot even challenge the legality of this “procedure” before a real jury because he is not being “punished.” Mr. Wolf is in grandjuryland.
Item: Federal prosecutors are now perusing the phone records of reporters for the New York Times. There was no search warrant that was approved by a federal judge. The records were acquired by a grand jury subpoena, which does not require the approval of a judge. Indeed, prosecutors can issue such subpoenas without even notifying the grand jurors.
Few people appreciate the incredible powers of the grand jury–and it is safe to say that the government likes it that way.
More on Military Tribunals and the Hamdan Ruling
For those interested in the Hamdan ruling and its impact on the law, check out my online debate (pdf) with John Baker, who teaches law at Louisiana State University. The Federalist Society just posted this debate on its website and it is framed in its popular “Five Questions” format, which means I throw five questions at Prof. Baker and vice versa. We then make claims and counterclaims about whether the question is actually relevant. True, this exchange does get pretty legalistic, but that sometimes happens when you’re asked legal questions about judicial rulings.
Geneva and Guantanamo
The news wires are saying there has been a major policy development concerning Guantanamo Bay. The Bush administration is now changing its stance with regard to the Geneva Convention, reports say.
The White House says today’s announcement does not reflect a change in policy. That is probably right. That is, the Supreme Court ruling in Hamdan established some new law with respect to the application of Geneva to detainees and the Pentagon is now simply tinkering with some policies to comply with that ruling.
Because Clintonian word games still pervade the capital, however, one must scrutinize these policy announcements very closely. For example, whatever the Pentagon is saying about Guantanamo today may be limited to the Pentagon and to the men held at Guantanamo Bay. I say that because in 2002, President Bush issued a directive that pledged humane treatment to all prisoners in U.S. custody. Attorney General Alberto Gonzales later admitted in 2005 that that directive did not apply to officers of the CIA and other nonmilitary personnel.
Tom Delay Is a Virginian
One of the best arguments for term limits is that we have reached the point where members of Congress are no longer “representatives” of their districts. The latest evidence of that came in this morning’s newspaper, which says Tom Delay will be on a Texas ballot in an upcoming election even though he has now declared himself to be a Virginian. Whether Delay wants to participate in that election or not, it is interesting that he has announced his status as a “Virginian” so fast. Or perhaps it’s not fast by modern standards.
Let’s see: Bob Dole returned to Russell, Kansas, to announce his candidacy for president. When he lost, he decided to live at the Watergate here in D.C. A few years later, his wife Elizabeth went to North Carolina to become a senator. The Clintons left Arkansas and are now New Yorkers. William Weld was governor of Massachusetts, but came down to New York to run for governor there. And there’s plenty more.
We need term limits before the next generation simply assumes that this is all perfectly normal and appropriate.
Military Tribunals Plan B, or C, or D, or…
Yesterday, the Supreme Court ruled that the Bush administration’s military tribunals violated the law. On the news today, I heard someone say that the White House must now consider “Plan B.”
Ahem — we passed Plan B some time ago.
Here’s a recap of what has transpired over the past four years:
PLAN A: Issue “military tribunals” order. (The resistance may be negligible.)
On November 13, 2001, President Bush quietly and matter-of-factly issued a “military order” to establish military tribunals for prisoners in the “war on terror.” The order stated that any prisoner designated by the president to be an “enemy combatant” would be imprisoned by the military. The order boldly declared that such prisoners could be tried before tribunals and that the prisoners “shall not be privileged to seek any remedy in any court of the United States.”
Judge to Federal Prosecutors: Put Those Guns Away & Tell the Truth
In a closely watched case, a federal judge has finally called the Justice Department to account for its high-handed tactics against business firms and businesspeople that are under investigation.
Prosecutors are increasingly using the threat of indictment to pressure firms into discharging certain employees and reneging on pre-existing company policies that would reimburse employees for attorneys’ fees associated with the business. When a CEO is convinced that some of his employees have engaged in criminal conduct, his decision is easy. But if the CEO is unsure or is convinced of their innocence, shouldn’t he maintain a presumption of innocence and help the employees in question by honoring the company policy? And what if prosecutors step up the pressure by leaking stories to press about the company’s “ongoing failure to cooperate with investigators”?
Here’s an excerpt from today’s NYT story:
In a strongly worded opinion, Judge Kaplan agreed with the defendants’ contention that KPMG, which was under criminal investigation, was improperly pressured to cut their legal fees.
KPMG refused to pay the defendants’ legal expenses, he wrote “because the government held the proverbial gun to its head.”
The government, he said, “has let its zeal get in the way of its judgment.”
…
In his ruling, the judge wrote that during negotiations with KPMG, the government violated the employees’ Fifth Amendment right to a fundamentally fair trial and their Sixth Amendment right to a lawyer.
An employer’s payment of legal fees is “very much part of American life,” he wrote, and applies to “bus drivers sued for accidents, cops sued for allegedly wrongful arrests, nurses named in malpractice cases, news reporters sued in libel cases and corporate chieftains embroiled in securities litigation.”
The right to legal fees is “as much a part of the bargain between employer and employee as salary or wages,” he wrote.
The judge also dressed down Manhattan prosecutors for being “economical with the truth” about pressuring KPMG to cut off the fees.
In his new book, Trapped, John Hasnas critiques the tactics of federal prosecutors because they so often put CEOs in catch-22 situations in which they must either act illegally or unethically. To listen to a lecture by the author, go here. For still more background, go here.
Policing the Police
Last week the Supreme Court said that it would be proper to just assume that unlawful police behavior would be dealt with appropriately by the authorities.
Item: One Frank Jude is bringing a civil suit against the City of Milwaukee because of the actions of its police officers.
Jude accompanied some people to the house-warming party of a police officer. After a while, Jude decided to leave. He was then accused of stealing a police officer’s badge and then all hell broke loose. Jude was swarmed by off-duty cops who beat him to a pulp. When Jude’s friends called 911, the on-duty cops arrived and they proceeded to take Jude into custody for resisting arrest.
The charges against Jude were quickly dropped as it became apparent that he was the victim, not the criminal. Now the investigation had to start over and no one in the government was anxious to handle it.
Tierney on Paramilitary Raids
New York Times columnist John Tierney has a terrific piece about the recent no-knock ruling and the proliferation of paramilitary units or SWAT teams. He cites Radley Balko’s forthcoming study on this subject, which will be officially released very soon.
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