Separation of powers

  • December 1, 2009

    Operating under the spectre of additional filibusters, the Senate considered two of President Barack Obama's judicial nominations today.

    The Senate Judiciary Committee, with only Senators Sheldon Whitehouse and Al Franken present, held a hearing on the nomination of Rhode Island Superior Court Justice Rogeriee Thompson to the U.S. Court of Appeals for the First Circuit. "So far, so good," said Whitehouse, who added that the absence of opposition at Thompson's hearing could hamper later attempts to obstruct her nomination. Upon confirmation, Thompson would become the first African-American and only the second woman to serve on the Boston-based appellate court.

    Considering the nomination of Judge Jacqueline Nguyen to the Central District of California in Los Angeles, the full Senate voted 97-0 for confirmation. Judge Nguyen is the first Vietnamese-American ever to serve as an Article III judge.

    Meanwhile, conservative activists are calling on the Senate to block two of Obama's nominees to federal trial courts.

  • November 19, 2009
    The Torture Memos
    Rationalizing the Unthinkable
    David Cole

    By David Cole, Professor of Law, Georgetown University Law Center

    What should a lawyer do when asked if it's legal to slam suspects into walls, strip them naked, deprive them of sleep for eleven days straight, force them into cramped stress positions and small dark boxes for hours on end, and waterboard them until they fear they are drowning? The answer should be obvious. Such conduct is flatly forbidden - by US and international law. It is cruel. It is inhumane. It is degrading. And it is torture.

    When lawyers in the Bush administration's Justice Department were asked that question, however, they said yes. And they continued to say yes, in secret, even as the law developed in public to confirm the absolute illegality of such conduct. Instead of requiring the CIA to conform its conduct to the dictates of law, the lawyers became accomplices to torture, twisting the law to facilitate abuse.

    How did they do so? For years, we could only speculate - all but two of the memos on the issue were secret, including all the memos that discussed the CIA's tactics in any way whatsoever. Thanks to a lawsuit by the ACLU and a more forthcoming approach by the Obama administration, we can now see just how lawyers in the Justice Department's Office of Legal Counsel rationalized the unthinkable. The documents I have reproduced in The Torture Memos are the "smoking gun" in the United States' descent into torture. They allow readers to see, first-hand, how law -- and lawyers -- failed.

  • November 18, 2009

    Today, before the Senate Judiciary Committee, Attorney General Eric Holder testified on several recent Justice Department developments. Two hot-button issues stole the show, though: domestic prosecutions of international terror suspects and the Office of Professional Responsibility (OPR) report on alleged ethics violations by Bush administration attorneys.

    "We need not cower in the face of this enemy," the attorney general said in response to critics of prosecuting terror suspects in federal court. "Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready."

    "I'm not scared of what Khalid Sheikh Mohammed has to say at trial, and no one else has to be afraid either," Holder told the committee.

    Holder's testimony gave senators the first opportunity to question him since the announcement that Khalid Shaikh Mohammed and other Guantanamo detainees will be tried in federal court. Those critical of the decision included Senator Lindsay Graham and Ranking Member Jeff Sessions, who said that he feared that the passage of time since 9/11 had "dulled the memories" of some Americans.

  • November 17, 2009

    When Attorney General Eric Holder announced that the United States would not abandon the rule of law as to several key Guantanamo detainees, he undoubtedly did so knowing that some observers would be, shall we say, skeptical.

    Some critics of the administration's plan to prosecute international terror suspects in domestic courts are "obsessed with the prospect of allowing these terrorists to have an opportunity to mount a so-called 'circus trial,'" writes Dahlia Lithwick. "They must be awfully afraid of the other side's message to believe that allowing the defendants to utter even a word in their own defense is to risk recruiting millions of new adherents worldwide."

    Perhaps the most colorable argument for fear of prosecuting terrorists in domestic courts is, as Sen. John Cornyn claims, that an acquittal may result. But, explains the Center for American Progress's Ken Gude, "Under the .000001 chance that [suspected terrorists] are acquitted, [the executive branch] will have ... authority to detain them," under the Authorization for Use of Military Force. Adam Serwer expands on the executive branch's authority, observing that, in the off-chance that Khalid Shaikh Mohammed (pictured) is acquitted, "The attorney general could detain him as an 'international terrorist' indefinitely, in renewable six-month periods, based on a provision in the PATRIOT Act."

    Conservatives are not uniformly opposed to prosecuting terror suspects in federal courts, however. In a letter endorsing transferring Guantanamo detainees to a federal prison in Thomson, Ill., former Republican Congressman Bob Barr, David Keene, chairman of the American Conservative Union, and Grover Norquist, president of Americans for Tax Reform, warned of "scaremongering" around the issue of detaining terror suspects domestically. In harmony with the Attorney General's view, Barr, Keene and Norquist concluded, "Civilian federal courts are the proper forum for terrorism cases."

  • November 4, 2009
    Following his participation in a recent panel discussion at an ACS symposium on national security and human rights issues, Vincent Warren, executive director of the Center for Constitutional Rights (CCR) talked with ACSblog about the Bush and Obama administrations’ use of the so-called "state secrets" privilege. The privilege has been invoked by both administrations to dismiss lawsuits challenging national security policy, such as the use of rendition, where terrorism suspects are sent to other countries for interrogation and detention.

    Warren said that despite the Obama Justice Department’s recent guidelines on use of the privilege, the executive branch is still using it to keep the judicial branch from hearing cases that raise national security issues. The state secrets privilege, Warren said, “really distorts” the Constitution’s separation of powers principle. The Obama administration “seems to be saying that there is no role for the judiciary” in cases that raise or challenge national security policy, Warren said.

    Warren’s comments preceded yesterday’s ruling by the U.S. Court of Appeals for the Second Circuit that dismissed a Canadian man’s challenge to rendition. Maher Arar, represented by CCR, sued the Bush administration alleging that he was sent by American officials to Syria in 2002 where he was detained and tortured. The Second Circuit ruled 7-4 that Arar’s claim must be dismissed because Congress has not authorized such lawsuits.

    Chief Judge Dennis G. Jacobs wrote for the majority in Arar v. Ashcroft, “We decline to create, on our own, a new cause of action against officers and employees of the federal government.”

    But Judge Guido Calabresi wrote in dissent, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

    Also writing in dissent, Judge Barrington D. Parker Jr. maintained the majority opinion advanced a cramped view of the separation of powers. “This view of the separation of powers,” he wrote, “which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil.”

    In a press release about the appeals court’s decision, CCR Senior Staff Attorney Maria LaHood said, “With this decision, we have lost much more than Maher Arar’s case against torture – we have lost the rule of law, the moral high ground, our independent judiciary, and our commitment to the Constitution of the United States.”

    Today, an Italian judge took a much different view of prosecuting government officials over national security policy. Judge Oscar Magi, Reuters reported, sentenced 23 former CIA agents, in absentia, to eight years in prison for their involvement in rendition of a Muslim cleric.

    Watch Warren’s entire interview with ACSblog below or download a podcast of it here.

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