issue: Judiciary

Bagram Detainee Case Likely Headed to the High Court

Posted on by The Progressive Policy Institute

In 2008, the Supreme Court decided that detainees held at Guantanamo Bay had the constitutional right to challenge the legality of their detention. Thus ended the question of whether all detainees in the fight against terrorism had a right to habeas corpus, right? As with all complex legal questions, the answer is never that simple.

The federal Circuit Court of Appeals for the District of Columbia added to the complexity of the habeas corpus issue when it ruled last Friday on a case filed by three detainees being held at Bagram Air Base in Afghanistan. Bagram is not only the largest American military base in Afghanistan, it also serves as a major detention center for those taken prisoner there, and allegedly holds some prisoners captured in other countries as well. In an opinion by Chief Judge David Sentelle, a Reagan appointee, the court found that the constitutional right of habeas corpus does not extend to detainees being held at the base.

The court made three central determinations in its decision. First, it found that the current procedure used at Bagram to deal with the detainees is even worse than the procedure that was used at Gitmo, which the Supreme Court found to be unconstitutional. The procedures at Gitmo, referred to as Combatant Status Review Tribunals (CSRTs), did not allow detainees access to an attorney and severely restricted a detainee’s right to present evidence on his behalf or rebut evidence by the government. The court in this case found that the procedures at Bagram, called Unlawful Enemy Combatant Review Boards (UECRBs), were even less sufficient than the CSRTs, and found that this factor initially favored giving Bagram detainees habeas corpus.

But despite that finding, the court found that two other factors weighed against granting the right. It concluded that Bagram is in fact different from Gitmo because the U.S. does not intend Bagram to be a permanent base similar to Gitmo, which has been operating for over a hundred years. More importantly, it found that giving Bagram detainees the right to habeas corpus could adversely affect the military’s ability to carry out operations in Afghanistan.

It is true that giving the detainees at Bagram the right to habeas corpus could cause a host of problems. It would require giving the detainees access to attorneys, and creating that system could eat up badly needed military assets. Also, Bagram detainees whose detentions were invalidated would most likely be released inside Afghanistan. This could put enemy fighters directly back on to the battlefield.

However, as the D.C. Court of Appeals admits, the fact still remains that the Bagram detainees are being held without constitutionally sufficient procedures available to them. If the U.S. is going to operate a prison where habeas corpus does not apply, what is to stop it from shipping all future terrorist detainees to Bagram to avoid giving them the right?

That’s why this case is on a beeline to the Supreme Court. While the Court has disagreed with the D.C. Court of Appeals on detainee cases, it is far from clear how it will come out on this issue. One factor making it hard to predict is that the Court’s makeup will be different from when it decided its last major detainee case with the addition of Justice Sotomayor and – almost certainly – Elena Kagan.

In its last major detainee case, the Court split down ideological lines, with Justice Kennedy writing the opinion and siding with the more liberal justices. It is likely that Justice Sotomayor, as part of the liberal bloc, would vote for extending habeas corpus to the Bagram detainees. Similarly, soon-to-be Justice Kagan would almost certainly be in favor of extending the right to Bagram detainees — in 2005, while dean of Harvard Law School, she joined in a letter with three other law school deans stating that detainees should be allowed access to federal courts for review of procedures such as CSRTs and UECRBs.

That said, neither are very experienced with national security cases, so one can’t say for sure how each will vote. Another factor making it difficult to predict the outcome is the fact that Bagram and Gitmo are situated differently. Both are active military bases, but Bagram is operating in a theater of war. Allowing detainees at Bagram to engage in the habeas corpus process could affect the military’s war effort in Afghanistan, a fact that could sway one or more of the liberal justices to the other side.

The views expressed here do not necessarily reflect those of the Progressive Policy Institute.

Photo Credit: U.S. Army Africa’s Photostream

You Don’t Have to Be Racist To Hate the 20th Century

Posted on by The Progressive Policy Institute

Before we move on from the controversy over Rand Paul’s comments on the Civil Rights Act of 1964, it’s important to understand that controversy over his political philosophy is likely to persist. And ironically, that’s especially true if the accusations of active or latent racism on Paul’s part are completely unfair.

If Paul’s original observations on the Civil Rights Act were motivated by indifference to discrimination against minorities, or the conviction some conservatives share that any government action to protect minorities is itself racism, then the controversy is limited to this one topic. In that case, the damage is limited to those voters who care about civil rights, many of whom will not be voting for Rand Paul in Kentucky or Republicans anywhere else.

But if, as his defenders insist (and as the record seems to support), Paul is simply expressing the consistent view that the operations of free markets, not government, are the best guarantor of individual rights in general and the interests of the poor and minorities in particular, and that the U.S. Constitution, rightly interpreted, reflects this conviction, then other, equally controversial issues may come into play, and not just those that involve other types of discrimination.

Most immediately, it’s worth remembering that principled, non-racist opponents of civil rights laws have to accept responsibility for their tacit alliances with racists. Best I can tell, Barry Goldwater did not have a prejudiced bone in his body. But there can be zero doubt that thanks to his “principled” opposition to the Civil Rights Act, his 1964 presidential campaign was totally dominated by segregationists in five of the six states he carried in the General Election, and served as the “bridge” whereby segregationists eventually migrated from the Democratic to the Republican party. At some point, the subjective motivation of civil rights opponents, past, present or future, becomes rather irrelevant.

But more importantly, Rand Paul’s concerns with the constitutionality of the Civil Rights Act suggest a radical outlook with political implications that go far beyond civil rights. After all, the provisions of the Civil Rights Act that limit the right to discriminate by private property owners depend on the same chain of “activist” Supreme Court decisions that made possible the major New Deal and Great Society initiatives, involving interpretations of the General Welfare, Commerce and Spending clauses that today’s (like yesterday’s) “constitutional conservatives” routinely deplore. Rand Paul’s campaign platform reflects the common Tea Party demand that the federal government be restricted to the specific enumerated powers spelled out in the Constitution. This constitutional fundamentalism, which appears to object to every expansion of federal power enacted since 1937, is made more explicit by Rand and Ron Paul’s friends in the Constitution Party, which forthrightly calls Social Security unconstitutional and demands that it be phased out immediately.

So: instead of challenging Rand Paul’s latest backtracking on the Civil Rights Act, or calling him racist, progressives would be better advised to corner him on his attitude towards the constitutionality of Social Security, Medicare and Medicaid, which, like the Civil Rights Act, reflect functions of the federal government that are not explicitly enumerated in the Constitution.

Add in the fact that Rand Paul has been calling for an immediate balancing of the federal budget without tax cuts, which would require some drastic action on federal spending, and it becomes plain that his honest and principled (at least up until his flip-flop on the Civil Rights Act) efforts to apply “constitutional conservative” doctrines to current affairs imply policies that when spelled out would repel many, many voters — just like Goldwater’s platform in 1964.

This item is cross-posted at The Democratic Strategist.

Photo credit: Gage Skidmore

Kagan’s Alleged Distance From the “Mainstream”

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In their efforts to find something objectionable about Supreme Court nominee Elena Kagan, some conservatives are resorting to an argument that is so vague as to seem innocuous, but that is also consonant with a serious strain of invidious prejudice: as a lifelong New Yorker, she’s inhabited a liberal “cocoon” that is remote from the mainstream life of most Americans. Kathleen Parker offered a particularly explicit version of this argument in a Washington Post column the other day. Here’s a sample:

Certainly New York City dwellers would argue that they struggle with ordinary concerns, just in a more dense environment. But New York, like other urban areas, tends to be more liberal than the vast rest of the country. More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.

This claim that Kagan’s nomination violates some unwritten rules of geographical and ethnic balance on the Supreme Court is spreading pretty rapidly. I did a fairly systematic response over at FiveThirtyEight, noting that (1) this wouldn’t be first time the Court might had three New Yorkers; (2) life in New York isn’t exactly the liberal cocoon that conservatives so often describe it as; and (3) geographical background or even diversity of experience has not in the past been a particularly good predictor of judicial philosophy or contributions to the Court.

If Parker’s argument and many like it strike you as risking encouragement to some very old prejudices, you should check out my response.

This item is cross-posted at The Democratic Strategist.

Photo credit: https://www.flickr.com/photos/hlrecord/ / CC BY 2.0

Miranda Rights, the Public Safety Exception and Congress

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The arrest of Faisal Shahzad has revitalized the conversation about the legal rights of terrorism suspects apprehended in the U.S. In February, I wrote that a public safety exception to ordinary Miranda procedures exists, and called it a useful tool in terrorism cases because it could allow for interrogation of terrorism suspects for a reasonable period of time before they are read their Miranda rights, as happened in the case of the Christmas Day bomber, Umar Farouk Abdulmutallab.

The incident in Times Square has given even more momentum to the idea of Miranda-less interrogations. On Sunday, Attorney General Holder came out and said that he wants Congress to pass a law specifically allowing interrogations without Miranda warnings in international terrorism cases. Such a law would obviate the need for law enforcement to rely on the current public safety exception.

Holder’s proposal is unique. The public safety exception is not the result of congressional action, but rather was created by a 1984 U.S. Supreme Court decision. In fact, all exceptions to Miranda rights under federal law come from court decisions and not from Congress. The question is this: Is it necessary for Congress to create a Miranda exception for terrorist suspects, or is the existing public safety exception enough? The congressional approach has several pros and cons.

The major benefit to Congress passing a law that explicitly creates a Miranda exception would be the specificity it would provide. Currently, law enforcement officials decide whether to invoke the public safety exception depending on whether they think a risk to public safety exists. Whether or not an officer’s belief is legitimate is determined on a case-by-case basis in court. Congress could make a law that lays out specific timeframes and circumstances under which a terrorist suspect could be interrogated without Miranda rights. Law enforcement officials would benefit greatly from knowing exactly what kinds of constraints exist.

Another benefit would be that, as long as law enforcement acted within the bounds of the statute, prosecutors would be more easily able to justify Miranda-less interrogation. As it is now, if a terrorist’s defense attorney challenges his client’s interrogation, prosecutors must show that law enforcement acted out of a legitimate concern for public safety. That process can be significantly more difficult and time-consuming than if prosecutors could simply point to a statute authorizing interrogation without Miranda.

Conversely, the existing exception’s major benefit could be its flexibility. The exception was created without specific constraints because the Supreme Court knew that it could not foresee all possible scenarios in which the exception could be applied. Similarly, Congress will not be able to foresee all possible terrorism scenarios. This could lead to a situation in which Congress creates a law that gives law enforcement less latitude than they might receive under the current exception.

It’s likely that Congress will try to pass a law that allows for a terrorist suspect to be interrogated for 48-72 hours, or even more, without being read his Miranda rights. Interrogations of such length would probably not be allowed under the existing exception. Should Congress authorize long interrogations without Miranda, expect a significant backlash from civil liberties advocates and some elected officials. Moreover, a statute granting law enforcement a great deal of flexibility could run the risk of being overturned in the courts. Stay tuned.

Elena Kagan Gets the Nod

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Even before the president’s announcement of Elena Kagan as his second nominee for the Supreme Court, progressives were beginning to rethink their position of skepticism (often assumed in the cause of encouraging a different nominee, typically Judge Diane Wood), and conservatives were beginning to gird up their loins for a confirmation fight.

There will be some progressives (probably Glenn Greenwald, but perhaps others) who may never reconcile themselves to support for a Justice with Kagan’s record as Solicitor General on civil liberties issues related to executive power and treatment of terrorism suspects.

But as SCOTUSblog’s Tom Goldstein suggested at The New Republic this weekend, the confirmation debate in the Senate is very likely to fall into familiar partisan/ideological patterns, with the final vote representing a mirror image of the Alito confirmation.

One major argument for her nomination all along has been her recent confirmation as solicitor general with significant Republican support. But some GOP senators will quickly argue that a different standard altogether will be used for a lifetime appointment to the High Court, and find reasons to vote against her (one senator, Arlen Specter, is in a particularly embarrassing situation, having voted against Kagan for solicitor general back when he was struggling to placate conservatives; he must now support her for the Court in the midst of a tough Democratic primary battle).

A summary of immediate conservative reaction to Kagan’s nomination by CBS’ Jan Crawford indicates that her enforcement of Harvard Law School’s ban on military recruitment on campus on grounds that DADT violated the university’s non-discrimination policies will be the lightning rod for the campaign against her. That makes sense, because the issue simultaneously strikes chords with cultural conservatives spoiling for a Court fight, and with conservative “populists” generally who will depict Kagan as an New York/Ivy League elitist out of touch with mainstream patriotical values.

But as I’ve argued earlier, the real question is whether the newly radicalized conservative/Tea Party faction of the GOP will insist on making the confirmation fight a showcase for their own distinctive views on the Constitution, which would make any Obama nominee, and most Republican nominees, categorically unacceptable. Kagan’s notoriously short public record of pronouncements on constitutional issues may, in fact, feed conspiracy theories that she represents a carefully planned leftist plot to move the Court in a totalitarian direction.

So even as Republicans search (almost certainly in vain, given the scrutiny she’s already received as a likely Court nominee) for some smoking gun in Kagan’s background, keep an eye on the tone of conservative rhetoric about this nomination. If it gets as shrill as I suspect it will, then progressives need to be prepared for a counter-offensive that exposes the radicalism of the increasingly dominant faction of the GOP.

This item is cross-posted at The Democratic Strategist.

On Supreme Court, Bet on a Safe Pick — and a Big Fight Anyway

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The word coming out of the administration and Democrats in Congress is that President Obama would like to avoid a big fight over his next Supreme Court nominee. And indeed, the emerging conventional-wisdom shortlist reflects the desire for a nominee who can win smooth confirmation from the Senate.

The names that keep popping up are Solicitor General Elena Kagan and federal Appeals Court Judges Diane Wood (of Chicago) and Merrick Garland (of District of Columbia). One less-mentioned name who is still a possibility is Homeland Security Secretary Janet Napolitano.

As Stuart Taylor Jr., hardly a liberal ideologue, wrote recently, “It would be hard for Senate Republicans to justify or sustain a filibuster against any of these four, based on what’s known about them. Indeed, Kagan, Garland, Napolitano, and arguably Wood have less problematic paper trails than Sotomayor, whom the Senate confirmed last summer on a 68-31 vote, with lots of complaining but no filibuster.” Indeed, if anything, the picks might be too safe for some on the left. The emergence of Kagan as a frontrunner has already led to some howls of outrage from some progressives who see her as much too accommodating to conservative and centrist views and want a more combative liberal to replace John Paul Stevens.

Bet on Obama to (as usual) block out the noise from the fray in making his selection and pick someone safe. But bet on this as well: whomever he taps will inspire a loud clamor from conservatives, both in the base and on the Hill.

Kagan may very well be the most qualified of the possible nominees (I haven’t studied all their records). But forget about her moderation cooling the temperature over the Supreme Court debate. The right has perpetuated a narrative that simply doesn’t allow for the idea of a moderate progressive. Anyone to the left of Scott Brown (and that might be too generous) is suspect, an enabler of the “most radical administration in American history.” Besides, a Supreme Court fight is the kind of thing fundraisers and the rank-and-file live for. By the time the Beck-Palin-Rush crew is done with Kagan or any Obama nominee, they will be a lightning rod anyway. And, just as with health care, the likelihood is that the left will rally around the nominee once they see the right flip out over it.

This isn’t to say that Kagan wouldn’t win confirmation. All of the four mentioned above are confirmable. But a rancorous debate is probably unavoidable. It’s simply where we are right now. Nate Silver writes, “One other dynamic to watch out for: whether the partisan split on Obama has become so entrenched that whomever he nominates will start out with 35 percent disapproval.” I’ll take the over.

Warm-Up Act for the Supreme Battle

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As we await word from Justice John Paul Stevens about his retirement plans, conservatives (and particularly the conservative legal activists who live for Court nomination battles) have decided to engage in a sort of warm-up act, or perhaps a show of force, by picking a fight over UC-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of Appeals.

In a summary of the mobilization over Liu that’s already far along among conservatives, Politico‘s Kasie Hunt suggests the professor’s views (or more specifically, the long paper trail that professors tend to leave) make him symbolically important to his and the president’s enemies:

Why all the fuss over just one among hundreds of federal judicial nominees? Conservatives see Liu as the tip of the spear for the next generation of jurists — if he makes it to the court they fear he could become a leading liberal jurist on property rights, the death penalty, affirmative action, guns and even interpretations of the health care law.

Now it’s fundamental to disputes over the Supreme Court and the Constitution that each side — sometimes fairly, sometimes not — tends to depict the other as aggressors against the status quo ante; I’d personally rephrase Hunt’s characterization of conservative opinion to say that they view a rising legal star like Liu as a conveniently “radical” foil for their own radical constitutional arguments, aimed at rolling back “liberal” Supreme Court decisions dating back at least to the New Deal.

Accordingly, progressives need to go into the fight over Liu not in a defensive crouch over his “controversial” utterances carefully taken out of context from law review articles and interviews, but determined to expose the radicalism of his tormentors. Among the conservative legal beagles who will be leading the charge against Liu are people who are determined to erode the separation of church and state; to undermine the constitutional basis of New Deal and Great Society programs like Social Security and Medicare; and to strip away significant civil liberties and civil rights protections.

Whatever happens to Liu’s judicial ambitions (and it’s worth noting that it’s a lot easier to defeat a circuit court nomination than a Supreme Court nomination), the fight over his nomination should be a warm-up act for progressives as well. As I wrote when word of Stevens’ likely retirement came out, the Supreme Court battle offers progressives a good opportunity to show that the Republican Party is increasingly the captive of people and opinions that won’t much stand the light of day, and whose radicalism is most evident when they begin trying to tamper with the Constitution. I suspect Goodwin Liu’s “controversial” liberalism will embolden them to go hog-wild.

This item is cross-posted at The Democratic Strategist.

Over the Brink

Posted on by The Progressive Policy Institute

The craziness surrounding futile efforts to overturn health reform via lawsuits reached a new crescendo in Georgia yesterday, when Republicans in the state House introduced articles of impeachment against Georgia Attorney General Thurbert Baker. You see, Baker (a Democrat) refused to join Republican Attorneys General who are launching a suit charging that federal health reform is unconstitutional. He argued (very accurately) that the suits have no change of succeeding, and that pursuing them would be a waste of time and money. Republicans claim he’s required to file suit at the request of Republican Gov. Sonny Perdue.

By threatening impeachment on such transparently partisan grounds, GOPers are probably doing Baker a big favor: he’s running for governor, and has been trailing former Gov. Roy Barnes in the polls. In addition, there’s something a bit attention-grabbing about the spectacle of Republicans demanding that an African-American statewide official embrace neo-Confederate constitutional theories on “state’s rights” grounds.

As Eric Kleefield of TPM has noted, the “massive resistance” approach to health reform has already become a litmus test for conservative Republicans, right up there with criminalizing abortion and defending trust fund babies against “death taxes.” So get used to it; they just can’t help themselves any more.

This item is cross-posted at The Democratic Strategist.

A Major Teachable Moment

Posted on by The Progressive Policy Institute

The more I think about it, the fight over a Supreme Court nomination that we are likely to see begin in a month or so could be a major teachable moment for progressives about the underlying belief system of contemporary conservatives and of Republicans who have let themselves get radicalized to an extraordinary degreee since the latter stages of the 2008 presidential contest.

As we speak, conservatives all over the country are demanding legal action by states to challenge the constitutionality of health reform legislation (in my home state of Georgia, there’s even talk of impeaching the Democratic Attorney General, Thurbert Baker, for refusing to waste taxpayer dollars by launching a suit). Yet the basis for such suits — typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution — is a collateral attack on the constitutionality of a vast array of past legislation, including the New Deal and Great Society initiatives, not to mention most civil rights laws.

And that questionable proposition is completely aside from other conservative efforts, many of them backed by major Republican officeholders, to “interpose” (to use the term for this strategy when it was deployed by segregationists in the 1950s) state sovereignty to block the implementation of health reform and other federal laws. And beyond that we have the even more radical nullification and secession gestures that have become standard features of conservative Republican rhetoric over the last year or so.

In other words, a debate that revolves around constitutional interpretation is not necessarily one that will help the conservative movement at this particular moment. Indeed, it could actually help progressives raise suspicions that Republicans are contemplating a very radical agenda if they return to power, one that could include (particularly given the stridency of their fiscal rhetoric lately) a direct assault on very popular programs like Social Security and Medicare.

Moreover, we can anticipate that a Court nomination fight will renew noisy efforts by the Christian Right, which has good reason right now to remind the news media and Republican politicians alike of its continuing power in the GOP, to advance its own eccentric views on America as a “Christian Nation” whose founders never intended to promote church-state separation, not to mention their demands for an overthrow of legalized abortion and same-sex unions. At a time when many conservatives are trying very hard to submerge divisive cultural issues and create a monomaniacal message on limited government, a Court fight will unleash cultural furies beyond control.

And finally, if it really gets vicious, a Court fight could cast a harsh spotlight on the drift of the conservative movement towards a general attitude of defiance towards the rule of law. As I noted in a post yesterday, the downside of the libertarian energy given conservatives by the Tea Party movement is its tendency to treat every major government institution, the presidency, the Congress, and the judiciary alike, with contempt as threats to liberty and “natural rights.” As much as Americans love liberty, they also love order and stability. They aren’t likely to react well to the spectacle of conservatives screaming for a virtual revolution against a popularly elected government, the social safety net, and constitutional doctrines that have been in place for 75 years.

So: bring on the Court fight, and bring it on with all the rhetoric Tea Party folk and other radicalized conservatives have been using about Obama’s “socialism” and the Nazi-like tyranny of universal health coverage! Before it’s over, Republicans may wish they had just picked a different fight.

This item is cross-posted at The Democratic Strategist.

Pre-Election Court Fight?

Posted on by The Progressive Policy Institute

Congress wrapped up action on health reform with considerable dispatch in the wee hours last night. It’s generally assumed that financial regulation will be the next big issue, and one that many Democrats will relish given the likelihood that the stiff winds of public opinion will be at their backs for a change.

But it appears a very different fight may be thrust upon them pretty soon, with reports that Supreme Court Justice John Paul Stevens may retire as early as next month (when he turns 90). If that’s the case, a confirmation fight will inevitably coincide with the runup to the November elections.

Now Stevens (though appointed by Republican president Gerald Ford) is considered one of the Court’s staunchest liberals, so the confirmation process normally wouldn’t touch off the sort of frenzy on the Right you’d see if Obama were in a position to replace a conservative. But given the timing–not just the proximity to the midterms, but to the health care battle–none of that may matter. You can certainly expect the Tea Party movement and its Republican allies to use a Court fight to dramatize their claims that the Constitution is being shredded. And it’s particularly likely that the Christian Right (important to both the Tea Party movement and the GOP, but not very visible in the news media) would use the opportunity to remind everyone they’re still around, loud and proud.

The New York Times story on the probable Stevens retirement runs through the most prominent candidate for the next Court opening, with Cass Sunstein and Harold Koh the possibilities most likely to set off a major ideological war, though the odds of either getting the nod are slim.

Given the current environment, though, the president would probably have a big fight on his hands even if he appointed a card-carrying member of the Federalist Society to the Court. After health reform, virtually anything he does will by definition be treated by much of the Right as part of his nefarious plot to turn America into Sweden, if not Venezuela. So get ready for a major rumble.

This item is cross-posted at The Democratic Strategist.

The (Republican) Constitutional Challenge To Health Reform

Posted on by The Progressive Policy Institute

Yesterday, we learned that a coalition of State Attorneys General — 12 so far — plan to launch a constitutional challenge to the just-passed-but-not-yet-signed Senate health reform bill on grounds that imposing an individual mandate to buy health insurance is not justified by the powers Congress enjoys under the Commerce Clause of the U.S. Constitution.

Interestingly enough, the media reports I’ve seen on this story do not mention that 11 of the 12 AGs in question are Republicans. The one Democrat, Drew Edmondson of Oklahoma, is running for governor in this very conservative state.

For what it’s worth, few constitutional experts find any merit for a Commerce Clause challenge to health reform. But the proposed suit is probably part of a longstanding conservative legal effort to slowly chip away at the expansive view of the Commerce Clause, which has been the basis for a variety of important congressional actions, including the Civil Rights Act.

While the challenge is unlikely to get anywhere, it is worth remembering that there wasn’t much if any precedent for the decision in Bush v. Gore, either.

This item is cross-posted at The Democratic Strategist.

The High Court Dismisses the Uighurs’ Case

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On March 23 the Supreme Court was set to hear Kiyemba v. Obama, the most significant case regarding Guantanamo Bay detainees since it decided that detainees had the ability to challenge their detention through use of the constitutional right of habeas corpus. The question before the court in Kiyemba was whether if a Gitmo detainee is granted release by a federal court through a habeas corpus challenge the executive branch must let him go him even if it meant releasing them into the United States. Today, the court decided to avoid answering that question and sent Kiyemba back to a lower federal court.

Here’s a brief background of the case. The detainees involved in Kiyemba are members of a Chinese ethnic minority called the Uighurs. U.S. forces captured them at a terrorist training camp in Afghanistan shortly after the beginning of operations there. The Uighurs were training to carry out terrorist attacks against China. They eventually ended up at the U.S. military prison at Guantanamo Bay, and were held there for years despite the fact that they were not deemed to be enemy combatants. They were held because legal constraints prevented the U.S. from transferring them back to China due to the likelihood that they would be tortured — even executed — and the U.S. could not find another suitable country to accept them. The Uighurs filed the Kiyemba suit demanding they be set free even it if meant releasing them into the U.S.

The central issue in Kiyemba is this: What good is the right to challenge detention if there is not also a right to be released from incarceration? It seems logical that when a court decides that a prisoner is not being lawfully held, he is entitled to be released immediately. However, it is not so black and white with the Gitmo detainees.

There are serious concerns over releasing Gitmo detainees on U.S. soil. One is that a court could end up releasing a dangerous detainee because of shaky evidence that couldn’t be used for their prosecution. It has proven difficult for government attorneys to justify the continued detention of some detainees because evidence against them was classified, tainted by questionable interrogation techniques, rests with government operatives still overseas, or is based on questionable statements made by fellow detainees. This means that a dangerous detainee could actually be released into the U.S. because of a lack of reliable evidence to justify their detention.

Another legitimate concern is that even if a detainee was not a danger to the U.S. when they began their incarceration, they are now. As you can imagine, being wrongfully incarcerated by a country for years may lead to some pretty negative feelings toward that country – feelings that could be expressed violently.

Finally, there is the “not in my back yard” argument. No one is going to want former Gitmo detainees in their community. Even though a detainee may not be a legitimate security threat, a volatile situation could be created by citizens that are afraid of or angry at a detainee in their community.

Tackling difficult and complex issues is the Supreme Court’s most important job. Did the court punt on a major issue in this instance? Some might think so, but this case is different — the security concerns involving Gitmo detainees are very real and very serious.

The fact is that there are diplomatic solutions to the problem. In the Uighurs’ case, only five out of the original 22 Uighurs remain at Gitmo. The executive branch has been working hard to relocate them, and had recently persuaded Switzerland to take two of the men. In addition, the other detainees had been offered -– and refused – to be released to the island nation of Palau. The administration argued that those offers changed the circumstances under which the detainees’ challenge was brought in the first place -– an argument with which the court agreed.

By sending it back to the lower court, the Supreme Court forestalled having to rule on a difficult question. Indeed, if the remaining five Uighurs are released to another country, the judicial system will be able to avoid having to make a decision on the case. Once the Kiyemba case is resolved, the executive will have more time to relocate the remaining detainees at Gitmo, and hopefully will be able to right the constitutional ship through diplomatic efforts rather than by judicial order.

Do Americans Hate Free Speech?

Posted on by The Progressive Policy Institute

Looking for a “wedge issue” that will separate Republican politicians and interest groups from their rank-and-file, and from independents?

Check out this newly released finding from the most recent ABC/WaPo poll:

Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll. Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent). …

Nearly three-quarters of self-identified conservative Republicans say they oppose the Supreme Court ruling, with most of them strongly opposed. Some two-thirds of conservative Republicans favor congressional efforts to limit corporate and union spending, though with less enthusiasm than liberal Democrats.

What makes this finding so interesting, of course, is that Republican politicians and conservative intellectuals have fallen over themselves praising the Citizens United decision not just as a Good Thing, but as a heaven-sent vindication of First Amendment free speech rights. This is particularly true of the solon who is supposedly well on his way to becoming Majority Leader of the United States Senate, Mitch McConnell of Kentucky, who said of the decision:

Any proponent of free speech should applaud this decision. Citizens United is and will be a First Amendment triumph of enduring significance.

So I guess Mitch is saying that 80% of Americans don’t care much for free speech. And that may even be true if you think money talks.

The good news in this poll is that it shows a very strong base of bipartisan popular support for the legislative efforts of Sen. Chuck Schumer and Rep. Chris Van Hollen to fence off some of the more deplorable implications of Citizens United. But unfortunately, “fencing off” is about all Congress can do in the way of “reinstating limits” on political spending, which is what Americans manifestly want to happen. Unless Citizens United is actually overturned by a future Court (possible if Democrats hang onto the White House for a while) or a constitutional amendment (rarely a real option), the only practical counterweight to massive corporate political spending would be a system of public financing for congressional campaigns. It would have been nice if the ABC/WaPo pollsters had asked about that option. But I strongly suspect this isn’t exactly the best political environment for politicians to ask taxpayers to pay their campaign costs.

Still, the yawning gap between public opinion and the GOP on Citizens United should draw immediate and sustained attention from Democrats. And particularly at a time when the advantages of power in Washington have been so visibly minimized by structural obstacles, Democrats should open up a broader front in supporting political reforms. The status quo isn’t working for anyone other than those who don’t want government to work at all.

This item is cross-posted at The Democratic Strategist.

Same-Sex Marriage in Iowa: Safe Until 2014

Posted on by The Progressive Policy Institute

Sometimes significant political news stories involve dogs that don’t bark. That’s just happened in Iowa, where Republicans in the legislature have failed to force a vote on a constitutional amendment to overturn the state Supreme Court’s 2009 ruling legalizing same-sex marriage. Under Iowa’s constitution, amendments have to be enacted by two consecutive legislatures (which meet for two years), and then face ratification by voters. So barring some unforeseen development late in the current session, the earliest an amendment could be sent to voters would be in 2014.

Aside from the fact that this gives same-sex marriage a new lease on life, this non-barking dog also preserves the issue as a source of political controversy in Iowa for two more election cycles. But it also means that it won’t be directly on the ballot during the 2012 presidential contest.

Same-sex marriage has become a heavily partisan issue in Iowa, with virtually all Democratic officeholders supporting the Supreme Court decision and virtually all Republicans opposing it. But it’s also a bit of an intraparty issue for Republicans, since elected officials and candidates deemed insufficiently obsessed with efforts to overturn the court decision (e.g., former Gov. Terry Branstad, the favorite in this year’s GOP gubernatorial primary) have faced angry criticism from the Cultural Right. And the issue could spill over into the 2012 Republican presidential caucuses, where Iowa, as always, will have the first say, and where the Cultural Right (viz. Mike Huckabee’s 2008 victory) has always been very strong.

This item is cross-posted at The Democratic Strategist.

Miranda Rights and the Public Safety Exception

Posted on by The Progressive Policy Institute

Over the last couple of weeks, Republicans have been going hard against the administration over its handling of Umar Farouk Abdulmutallab, the Nigerian man being held for attempting to blow up a Northwest Airlines flight on Christmas Day.

On January 26, several high-ranking Senate Republicans sent a letter to Attorney General Eric Holder asserting that the administration rushed into giving Abdulmutallab constitutional Miranda rights without first coordinating with all necessary national security agencies and ignored him as a possible “intelligence resource.” This week, Newt Gingrich appeared on “The Daily Show” to slam the “mirandizing” of Abdulmutallab (falsely claiming that the same treatment for “shoe bomber” Richard Reid was fine because he was a U.S. citizen — Reid is British), while Sen. Kit Bond (R-MO) called for the removal of John Brennan, the White House’s top counterterrorism official.

Last week, Holder wrote a five-page letter to Senate Republican leader Mitch McConnell, defending the administration’s actions. Holder cited numerous incidents in the past in which terrorists had been apprehended, given constitutional rights, and then successfully cultivated as intelligence assets.

Despite what the Republicans claim, authorities can, in fact, obtain intelligence from terror suspects after Miranda rights are given. Moreover, there is a legal provision that could allow them to question terrorists before granting them their Miranda rights. As Holder stated in his letter, there is a public safety exception to the Miranda rule that allows authorities to question a suspect before reading him his Miranda rights if they believe an immediate danger to public safety exists.

Here’s how it works. Authorities on the scene of a terrorist act or attempt can make the determination whether or not a danger to public safety exists. If authorities determine that such a danger exists, as would be the case in almost any terrorist attack or attempted attack, they could invoke the public safety exception to allow them to question the suspect for some time before reading them their Miranda rights. After authorities are satisfied that they have gathered the information necessary to protect against imminent threats, the prisoner can then be given his rights. The suspect can challenge the use of the public safety exception and the length of questioning in a subsequent court hearing, where it would be up to a judge to decide whether use of the exception was justified. In clear-cut cases like Abdulmutallab’s, the exception would almost certainly always be upheld.

The public safety exception to Miranda was used in Abdulmutallab’s case. But in a way, that’s beside the point: Reports indicate that Abdulmutallab continues to give up valuable intelligence even after his rights were read to him. It’s an important point to remember: the public safety exception need not be a precondition to extracting information from suspected terrorists. Questioning after Miranda can take place with the suspect’s attorney present, which obviously can yield good information, as is reportedly the case with Abdulmutallab.

I tire of the notion, so often trumpeted by conservatives, that protecting constitutional rights and protecting national security are diametrically opposed ideas. Holder’s letter points out that even the Bush administration charged over 300 people with terrorism-related charges under the civilian justice system, with all traditional constitutional rights respected. We’ve used existing civilian law to combat terrorism in the past, and there is no reason to discontinue the practice now. America’s principles have endured for more than two centuries. Compromising them now is unnecessary and it will not make us safer.

The views expressed in this piece do not necessarily reflect those of the Progressive Policy Institute.

Can a Cap-and-Dividend Scheme Pass?

Posted on by The Progressive Policy Institute

In a new post on his blog, Harvard economist and PPI contributor Robert Stavins surveys the dismal political landscape for cap-and-trade and finds reason to be optimistic. Acknowledging that cap-and-trade as laid out in the Waxman-Markey bill is dead, Stavins surveys the remaining alternatives.

First he looks at the increasingly likely option of a stand-alone energy bill, which as he accurately describes it lops off the best thing about Waxman-Markey (a cap-and-trade scheme) and preserves the worst (a cocktail of standards and subsidies that will do very little at high costs).

Then he takes a look at EPA regulation as mandated by the Supreme Court. Stavins argues that going that route would be “relatively ineffective and terribly costly for what is accomplished.” Moreover, it promises a political backlash, with the EPA’s enforcement becoming the embodiment of regulatory overkill that can be used by the right to defeat sensible climate policies.

But Stavins does like one alternative lurking out there: a so-called “cap-and-divided” system whose appeal lies in its populist politics. Stavins explains:

This could be done with a simple upstream cap-and-trade system in which all of the needed allowances are sold (auctioned) – not given freely – to fossil-fuel producers and importers, and a very large share – say 75% – of the revenue is rebated directly to American households through monthly checks in a progressive scheme through which all individuals receive identical payments.

Such an approach could appeal to the populist sentiments that are increasingly dominating political discourse and judgments in this mid-term election year. Such a system – which would have direct and visible positive financial consequences (i.e., rebate checks larger than energy price increases) for 80% of American households – might not only not be difficult for politicians to support, but it might actually be difficult for politicians to oppose!

Such a system has already been proposed in Congress, with Sen. Maria Cantwell’s (D-WA) Carbon Limits and Energy for America’s Renewal (CLEAR) Act. Also sponsored by Republican Sen. Susan Collins (ME), the bill has the advantage of being bipartisan as well as populist. Stavins warns that changes still need to be made. For instance, the bill restricts the creation of a broad market for CO2 allowances, making it less efficient and needlessly driving up costs. (David Roberts at Grist has a more detailed — and I must say persuasive — critique of the CLEAR Act here.)

In actuality, a cap-and-dividend system as Stavins lays it out is little different from a cap-and-trade system. The main difference is optics. Waxman-Markey has now been (unfairly) painted as an unwieldy sausage of backroom deals and industry giveaways. By calling for auction revenues to be returned to consumers, a cap-and-dividend certainly might be more palatable in a populist period.

But one thing that supporters of cap-and-dividend forget is that Waxman-Markey did not give away free allowances because the bill’s authors like industry. Rather, they did it because they needed industry to buy in. Can a bill that withholds those incentives from utilities and other affected companies actually make it through the legislative process? I have my doubts.