ACSBlog

  • December 11, 2014

    by Caroline Cox

    Christie Thompson of The Marshall Project takes a look at “Skewed Justice,” the ACS-sponsored report on state judicial elections, and argues that ugly judicial elections are bad news for defendants.

    In The Washington Post, Matea Gold reports that a last-minute provision in a congressional spending deal could result in a financial resurgence of large donations to national political parties.

    David Cole, Co-Faculty Adviser to the Georgetown University Law Center ACS Student Chapter, argues in The New Yorker that the report on the C.I.A.’s interrogation program is only a start to taking responsibility for the wrongs done.

    At Bloomberg View, Noah Feldman asserts that the Supreme Court does not understand wage labor.

    At The Hill, Alexander Bolton reports that President Obama’s nominees are in a critical situation as the 113th Congress approaches adjournment.

    Anemona Hartocollis writes in The New York Times that insurers in New York are now obligated to cover gender reassignment surgery.

  • December 10, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

    More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

    Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

    Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

    Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

    That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.

  • December 10, 2014

    by Caroline Cox

    In The New York Times, Matt Apuzzo, Haeyoun Park, and Larry Buchanan explore the findings of the Senate’s CIA torture report.

    Also in The New York Times, William Yardley writes about the recent death of Dollree Mapp, a woman whose refusal to allow police to search her home “led to a landmark United States Supreme Court ruling on the limits of police power.”

    Dave Jamieson of the Huffington Post reports on Justice Clarence Thomas’ majority opinion in Integrity Staffing Solutions v. Busk that suggests Amazon workers should unionize rather than seek help from the courts.

    Jim Newell write at Salon that GOP Senators are now rethinking their stand on restoring the filibuster.

  • December 9, 2014

    by Caroline Cox

    Vikram David Amar writes at Verdict why the federalism lessons of the 2012 Affordable Care Act case weaken the argument in King v. Burwell.

    In Reuters, Joan Biskupic, Janet Roberts, and John Shiffman consider the small group of elite lawyers that dominate the Supreme Court docket.

    Conor Friedersdorf of The Atlantic writes about applying the “broken windows” theory to the police.

    At Bloomberg View, Noah Feldman reviews the recent Supreme Court case on Amtrak that considers how much lawmaking authority Congress can delegate to other bodies.

  • December 9, 2014
    Guest Post

    by Rob BostonDirector of Communications for Americans United for Separation of Church and State.

    The December holidays took an unusual turn at the State Capitol Building in Tallahassee, Fla., this year: A display sponsored by a group called The Satanic Temple is coming to the rotunda.

    How did this come about? Ironically, a series of actions by state officials led to this unorthodox display. A few years ago, Florida officials decided it would be nice to have a nativity scene in the capitol rotunda in December. They were aware that they couldn’t put one up themselves. A Supreme Court decision from 1989 called County of Allegheny v. ACLU bars governments from erecting purely religious symbols in public spaces.

    But a private group could do it – as long as the area in question was deemed an open forum for free speech. Lo and behold, the rotunda was declared an open forum, and the crèche came in.

    Of course, an open forum for free speech means just that – open to all kinds of free speech. So in 2013 the nativity scene wasn’t alone. An atheist group erected a banner offering people a happy Winter Solstice. One Floridian erected a “Festivus pole” made of empty beer cans. And “Pastafarians” put up a depiction of their beloved Flying Spaghetti Monster.