Obama administration

  • October 24, 2013

    by Jeremy Leaming

    In the wake of new reports from human rights groups about the toll America’s drone warfare has had on civilians in Pakistan and Yemen, an expert in constitutional law and international human rights suggests in an ACS Issue Brief released today that the government could take a bit more action to enhance procedures to reduce risk of civilian deaths.

    Deborah Pearlstein, assistant professor at Cardozo Law School, writes in “Enhancing Due Process in Targeted Killing,” that “it is worth taking seriously what procedural due process requires in targeted killings. Both the Supreme Court and the Executive Branch have now embraced due process to assess the legality of various U.S. uses of force against Al Qaeda and associates. As the Court has long recognized, U.S. citizens are protected by the Constitution wherever they are in the world. Even when they are deprived of their liberty in wartime, due process affords all ‘persons’ a right to notice of the reasons for the deprivation, and an opportunity for their opposition to be heard once any exigency has passed.”

    Pearlstein’s examination of Supreme Court precedent and American military procedure around constitutional due process comes on the heels of new reports from Amnesty International and Human Rights Watch that focus on civilian casualties of America’s escalating use of drone warfare overseas to attack alleged terrorists. Human Rights Watch’s report, “Between a Drone and Al-Qaeda,” looks at six targeted killings in Yemen ranging from 2009 through 2013. The report concludes, in part, that two of those drone strikes “killed civilians indiscriminately in clear violation of the laws war; the others may have targeted people who were not legitimate military objectives or caused disproportionate civil deaths.”

    Pearlstein, in her Issue Brief, says one should not easily dismiss “the application of constitutional due process in targeting as either hopelessly impractical, or hopelessly inadequate ....” She adds that her work is intended to “help advance our thinking of what process should be followed in targeting decisions when we do.”

    We know very little about the Obama administration’s drone warfare procedures. But earlier this year a white paper prepared by attorneys in the Office of Legal Counsel (OLC) was leaked providing a glimpse into a rather troubling procedure. That paper was, according to news reports, was gleaned from a larger memorandum on targeted killings. The ACLU lodged a legal action to obtain the entire document. But the white paper alone, according to Georgetown University’s David Cole provides a blueprint for making extrajudicial killings easier. The OLC white paper appeared to give little thought to due process and greater justification for killing of alleged terrorists overseas, even if it means killing civilians as well.

  • June 11, 2013
    Guest Post

    by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School

    In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.

    Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.

    While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”

    While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.

  • April 26, 2013

    by Jeremy Leaming

    Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.

    The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”

    But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”

    In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”

    The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.

    The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.

  • April 5, 2013

    by Jeremy Leaming

    In a bleak era of state and federal lawmakers striving to dictate to women on health care concerns, primarily centering on birth control, a federal court today offered a respite. It ruled that the federal government must stop making it difficult for young women to get access to emergency contraception.

    U.S. District Court Judge Edward Korman found that the FDA’s refusal to remove restrictions on the availability of Plan B, a medication to help prevent pregnancy, was “arbitrary, capricious, and unreasonable.”

    The Atlantic’s James Hamblin notes that “leaders in the FDA have advocated” the availability of the drug for some time now. “In 2011, FDA commissioner Dr. Margaret Hamburg concluded that it was safe to sell Plan B One-Step over the counter. The American Medical Association, Americans Congress of Obstetricians and Gynecologists, and American Academy of Pediatrics have since endorsed unrestricted access to emergency contraception.”

    But, in a move reminiscent of the George W. Bush administration’s disdain for science, Health and Human Services Secretary Kathleen Sebelius last year ignored the FDA’s recommendation and held that young women could not get access to Plan B without a prescription.

    Judge Korman blasted Sebelius’ decision as revealing “a strong showing of bad faith and improper political influence,” TPM’s Sahil Kapur reports.

    President of NARAL Pro-Choice American Ilyse Hogue lauded Korman’s decision, saying it is an “affirmation that policy can and should be driven by facts and by public health. For years, women have had to jump through hoops because officials in Washington played politics with our health. Today’s ruling brings us one step closer to putting women in control of our destinies.”

    It’s also a court ruling that will undoubtedly be attacked by the rabid and righteous groups bent on controlling certain health care decisions that should be left solely to women.

  • March 14, 2013
    Guest Post

    by Judith E. Schaeffer, Vice President of the Constitutional Accountability Center. This post is cross-posted from CAC’s Text & History Blog.

    Today, the Senate Judiciary Committee was scheduled to vote on the nomination of Jane Kelly to the United States Court of Appeals for the Eighth Circuit. Nonetheless, even though Kelly is a highly qualified, uncontroversial nominee and her confirmation hearing on February 27 was a virtual love fest, no vote took place.

    Why not? Well, since the start of the Obama Administration, with only five exceptions,* Republicans on the Judiciary Committee have routinely invoked a procedural rule allowing them to insist that a scheduled vote on a nominee be held over – postponed until the Committee’s next meeting or until the following week, whichever is later. They invoked that rule again today, putting off a vote on Jane Kelly, another instance of a mindless abuse of a rule intended to provide more time when more time is actually needed, not a rule intended to put off votes on uncontroversial nominees purely for the sake of delay, which is how Republicans have been using it. The abuse of this rule is just one more example of the unprecedented obstruction to which Republicans have subjected President Obama’s judicial nominees for the past four years.

    Jane Kelly hails from Iowa, the home state of Senator Charles Grassley, Ranking Member of the Judiciary Committee. Apparently, however, not even senatorial courtesy to a well-qualified, uncontroversial, home state nominee could trump the relentless obstruction of the President’s judicial nominees. And so the damage to our Nation’s judiciary continues.

     *Thanks to my colleagues at People For the American Way for the statistics.