On Wednesday, Dec. 9 at the National Press Club, Catherine Beane and Nkechi Taifa will participate in a panel discussion at an ACS event focusing on criminal justice reform policies. Sen. Jim Webb will provide a keynote address, Mariano-Florentino (Tino) Cuéllar, President Obama's Special Assistant for Justice and Regulatory Policy will give featured remarks, and Rep. Bobby Scott will participate in the panel discussion.

One of the top issues on the front burner of debate today is unemployment. Seldom, however, does the discussion include the connection of joblessness to crime. Indeed, linkages are also seldom made between the impact of inadequate education, poor health care, insufficient housing, and other indicia of poverty with criminal activity. The factors that contribute to delinquent and criminal behavior are interrelated and involve multiple disciplines and government institutions. The solutions must be integrative as well.

Unfortunately, current policy relies on incarceration as the primary strategy for addressing crime, despite its exorbitant costs and questionable public safety returns. This has resulted in a cycle of incarceration, fueled by "tough on crime" policies. Crime, however, cannot be effectively addressed in isolation, devoid of an analysis of the broader social context. It must be addressed through an integrative approach that calls for a comprehensive criminal justice strategy that tackles the underlying, interrelated social issues that fuel the cycle of incarceration.

There is an energy and enthusiasm across the disciplinary spectrum in stopping the cycle of incarceration before it begins through an integrative, multidisciplinary approach to justice reform that strengthens communities and affords those most at risk an opportunity to thrive. Indeed, with a recession in full swing, the stakes have never been higher. The opportunities, however, are bright. Recent federal legislative proposals such as the National Criminal Justice Commission Act, introduced by Senator Jim Webb (D-Va.) with strong support from Senator Lindsey Graham (R-S.C.); the Youth PROMISE Act, introduced by Representatives Robert C. "Bobby" Scott (D-Va.) and Michael Castle (R-Del.) and Senators Robert Casey (D-Pa.) and Olympia Snowe (R-Maine); and the Criminal Justice Reinvestment Act, introduced by Senator Sheldon Whitehouse (D-R.I.) and Representative Adam Schiff (D-Calif.), represent a shift from the ineffective and costly punishment based policy-making paradigm toward a fiscally responsible and effective comprehensive approach focused on preventative front-end reforms.

In addition to Congressional leadership, strong federal leadership from the White House is needed to reorient federal criminal justice policy toward a more integrative approach. A White House Summit on Integrative Justice - akin to previous health care and economic summits, as well the recent Jobs Summit, would provide a forum for researchers, service providers, academics, advocates, and policymakers from across the disciplinary spectrum to inform the policies and strategies adopted by the Administration to prevent crime, enhance public safety, and effectively respond to the serious crisis that exists in America's urban areas. White House leadership would send a strong message to policymakers that an integrative approach to justice is a national priority, is a more effective means of ensuring public safety, and is critical if we are to correct the flawed policy choices that have led to the problems facing urban America. The Wednesday, Dec. 9 ACS panel discussion on criminal justice policy offers an important opportunity to explore both the need for an integrative approach to justice as well as critical opportunities for federal leadership.

[Image via b.keelerfoster]

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The world breathed a collective sigh of relief when-just days into his administration-President Obama issued a series of executive orders to phase out Guantanamo, end torture, and shutter the Bush-era web of secret prisons.

But recent revelations indicate that the Administration's actions have failed to match its lofty rhetoric. According to The New York Times and The Washington Post, the Obama administration continues to use the practice of secret detention at facilities such as the recently identified "black jail" located at Bagram Airfield in Afghanistan.

It is a shocking revelation, not least because of Obama's firm stance against virtually identical practices that occurred under the Bush administration. On the same day that the president called for a winding down of detention operations in Guantanamo Bay nearly a year ago, he ordered the immediate closure of the network of CIA-run "black sites". These secret prisons, where detainees were often held incommunicado before being transferred to other detention facilities or released, saw some of the worst human rights abuses in the "War on Terror." And yet the Obama administration has permitted their apparent reincarnation in Afghanistan. 

Because the "black jails" in Afghanistan are managed by military Special Operations forces instead of the CIA, their existence does not technically violate Obama's executive order. Still, the maintenance of such facilities almost certainly runs afoul of U.S. commitments under human rights treaties and the Geneva Conventions. And the message to the world is clear: the Obama administration is willing to treat detention as an international shell game.

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Today military judge Lt. Col. Nancy J. Paul ruled on two motions in the case of Ibrahim Ahmed Mahmoud al Qosi, bringing his case one step closer to trial before a military commission at Guantanamo Bay. In over five years since the prosecution first brought charges against al Qosi, it has yet to clear what Judge Paul described as "the first hurdle in this race"-establishing that the Commission has jurisdiction over the defendant.

Judge Paul began with the prosecution's oral motion to amend the charge sheet against al Qosi to account for new changes to the scope of the Commission's personal jurisdiction. The Military Commissions Act (MCA) of 2009 replaces the term "alien unlawful combatant" with the term "alien unlawful belligerent" and changes the term's definition.

The judge's ruling noted that the prosecution's motion to amend the charges was "an issue of first impression"-as is typical of issues arising before the commissions-because it involved a provision added by the MCA of 2009 that explicitly allows the prosecution to amend existing charges "as needed to properly allege jurisdiction" under the new law.

But Judge Paul refused to allow the bulk of the prosecution's proposed amendments, even under the new provision, finding that they went far beyond what was "needed to allege jurisdiction." The changes would've expanded the timeframe of the charge sheet from five to nine years and included numerous new overt acts. Borrowing from the rules of the well-established courts martial system that don't directly apply to military commissions, Judge Paul concluded that to allow all of the prosecution's proposed amendments would be a "major change" to the charges and would "bring unfair surprise to the accused."

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PTSD Defense via "Selective Empathy": ACS Board member Linda Greenhouse on the Supreme Court overturning a veteran's death sentence.

Huckabee & Clemmons' Clemency: The former governor's persistent defense of clemency for an apparent cop-killer.

Civil Disobedience or Epidemic?: Following the jailing of their colleague, 20 courthouse deputies call in sick.

Crime-fighting with Criminology: Cincinnati's "unusual" approach to combatting gang violence.

Re-Thinking the System: Sen. Jim Webb and other special guests join ACS for a major event on Wed. 12/9 to assess the shortcomings and opportunities in our country's approach to criminal justice.

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Roughly since the second Reagan administration, separation of powers sophisticates (SOPS) have been held in thrall - whether in joy or dread - by the theory of "the unitary presidency." Its central claim is that the president is constitutionally entitled to direct personally the exercise of any and all discretionary authority that Congress vests in any officer of the executive branch. Say the Center for Disease Control is told to write a pamphlet about AIDS. The president gets to edit it. NASA scientists are supposed to write a report on climate change. The president gets to tell them if global warming is good science. Maybe the Park Service has been given the discretion to limit certain activities in national parks either through the imposition of user fees or the promulgation of regulatory restrictions. The president gets to pick. And so on. Any and all discretionary decision making in the executive branch would be hypothetically subject to presidential control, even in areas of government activity for which Article II gives the president no inherent authority.

A number of fellow academics for whom I have great personal affection and intellectual respect assert (a) that they are constitutional originalists and (b) that unitary executive theory represents the proper reading of the Constitution. As I wrote in MADISON'S NIGHTMARE: HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY (University of Chicago 2009), I don't think these positions can be squared. Eighteenth century ideas of executive power simply did not include centralized policy control over all of public administration.

The idea of the unitary presidency is a very tough one, however, to test in court. One would have to imagine a case in which a party with standing was injured by an administrative action that the relevant officer avowedly undertook for the sole reason that the President ordered her to do so, but which, she confesses, she otherwise would not have pursued. Hard to see that happening. So, we SOPS are left to read other tea leaves, and the tea leaves we read most assiduously appear in Supreme Court opinions on appointments and removals. That is because the Court's conclusions on the president's appointment and removal powers would seem to have some logical connection to its inferences about the president's supervisory powers, as well.

This is the main reason that even those of us who devote little if any time to thinking about securities regulation care about Fair Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 77 U.S.L.W. 3625 (U.S. May 18, 2009) (No. 08-861), in which the high court will hear oral argument on December 7.

This case involves the constitutionality of the Public Company Accounting Oversight Board (PCAOB), which was created by the Sarbanes-Oxley Act to oversee the activities of public company auditors. It is an odd institutional creature - a nonprofit private corporation that has been given enforcement, adjudication, and rulemaking powers. The members of the PCAOB are appointed by the Securities and Exchange Commission - presumably because Congress found them to be "inferior officers" and thus subject to appointment, at Congress's discretion, by the "heads of departments" - and are not directly removable by the president. This is clearly not the unitary executive at work.

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Between Arab and White

Race and Ethnicity in the Early Syrian American Diaspora

By Sarah Gualtieri

[Available Here]

At a recent conference on Arab American history held in Los Angeles, a young man asked a question and identified himself as being with a student organization at the University of California Los Angeles (UCLA) that was working to change the university's admission forms to allow students to identify themselves as being Arab and/or Middle Eastern under the race category. (Many are checking "Other" although the expectation is that they will check "white"). This development demonstrates how a young generation of Arab Americans are mobilizing around issues of racial identification (and misidentification); while it also presents a case of disassociation from whiteness with varying degrees of awareness about why people of Arab origin and descent are classified as "white" in the United States.

Between Arab and White answers this question by exploring the early history of Arab immigrants' engagements with race, a category with which they were not particularly familiar prior to their migration to the Americas. Like other immigrant groups, when their fitness for citizenship came under scrutiny in the early 20th century, they responded by litigating their whiteness in federal courts. Eager to access the privileges of citizenship (such as the right to vote and to own property) they argued that they were not Asian but Caucasian and should not therefore be excluded from the naturalization statute. Litigants and their supporters also marshaled civilizational and religious arguments to support their claims to whiteness. H.A. Elkourie argued in the Birmingham Age Herald that the "Semitic was the original civilizer, developer and intermediator of culture and learning" while lawyers in the 1914 Dow case argued that "the history and position of the Syrians, their connection through all time with the peoples to whom the Jewish and Christian peoples owe their religion, make it inconceivable that the [naturalization] statute could have intended to exclude them." This civilizational strategy reveals the intertwined histories of race and religion in the United States and the tendency toward imprecision and arbitrariness in the definition of racial difference. Judge Henry Smith, for example, ruling in the Shahid case, believed that there was no scientific basis to race. He did not abandon the tenets of white supremacy, but he did recognize the mental gymnastics involved in defining the "Caucasian race". They were, he would later write, the result of "a strange intellectual hocus pocus."

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Congress is poised to release a report on the sharp drop in civil rights enforcement during George W. Bush's presidency. The 180-page General Accountability Office report is being made public today as the House of Representatives kicks off its first oversight hearings on the Justice Department's Civil Rights Division under President Barack Obama.

"Despite, or perhaps because of, its importance and effectiveness, the Division has always been controversial," Sen. Edward Kennedy wrote last year in the Harvard Law and Policy Review, the official journal of ACS. "Under the Bush Administration, however, the vital cooperation between political appointees and career civil servants in the Division has broken down, with troubling consequences."

Sen. Kennedy's insights were prescient.

"When the Bush administration ran the Civil Rights Division at the Justice Department, career lawyers wanted to look into accusations that officials in one state had illegally intimidated blacks during a voter-fraud investigation," reports The Times' Charlie Savage today. "But division supervisors refused to 'approve further contact with state authorities on this matter,' according to a new report by the Government Accountability Office auditing the activities of the division from 2001 to 2007."

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In the small Oklahoma town of Wakita, a prison ministry group is seeking to build a private, "all-Christian" prison. Inmates would be required to take part in "Christ-centered" programming. All of the prison's staff would be Christian believers.

Sounds at all familiar? If so, that's probably because a couple years ago, in Americans United for Separation of Church and State v. Prison Fellowship Ministries, a federal appeals court declared unconstitutional a prison cellblock that was similar. Creating an entire "all Christian" prison would be an even more egregious violation of the Constitution.

As explained in a letter from Americans United for Separation of Church and State to Oklahoma prison officials, taxpayer funds would be used to support religious indoctrination. Public funds would aid the prison's religious discrimination in employment as well. What is more, as jailers have a great deal of power over the prisoners under their control, the prison's inmates would be highly vulnerable to religious coercion.

Fortunately, the Oklahoma Department of Corrections appears to have little interest in sending inmates to the contemplated "all Christian" prison. And many municipalities rejected proposals that they host the institution, before Oklahoma's Wakita was approached.

One advocate of the proposed prison explained that the project had not been accepted because of "Satan": "He exists, he doesn't [want] this project to succeed. He is doing everything he can to defeat this project and he is using good people with good intentions. Satan is much more powerful than anybody in this room, he will twist that person around where they think they are doing the right thing in fighting it."

Rather than "Satan," prison systems and communities that have spurned the prison proposal have been rightfully concerned about complying with the Constitution, avoiding legal liability, and not turning their inmates over to an unknown and unproven entity. Wakita, as well as any other towns and states to whom the proposed prison may be brought, should reject the project for the same reasons. 

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Congress is moving to protect whistleblowers from employer retaliation. Buried in the Investor Protection Act is an amendment that would close a loophole that currently exposes some employees to the will of their employer for reporting corporate wrongdoing.

The Wall Street Journal reports:

[T]he Labor Department has dismissed many whistleblower complaints on a technicality, saying the law, as written, doesn't apply to corporate subsidiaries.

Since the law was passed in 2002, the government has ruled in favor of corporate whistleblowers in 21 out of 1,455 complaints. Another 996 cases have been dismissed. The rest of the cases were withdrawn, settled or are pending.

The amendment just passed out of the House Financial Services Committee by a party-line vote and should come before the full House in a matter of weeks.

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After 57 months, the case against Ahmed Ghailani (pictured) should be dismissed, his lawyers say. In a motion filed under seal last month, and just released in part yesterday, Ghailani's attorneys argue that Ghailani's right to a speedy trial was violated, unduly prejudicing the case against him.

Ghailani faces 286 counts for his alleged involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. He was included among almost two dozen suspected terrorists in a broad indictment against those who would kill Americans "anywhere in the world, including in the United States." The indictment also targets Osama bin Laden, and may be extended to Khalid Shaikh Mohammed, should prosecutors seek to have his trial overseen by the same judge assessing Ghailani's case.

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Ohio state officials have agreed to settle a lawsuit that will require greater efforts by government officials to register low-income voters. The lawsuit brought by the Lawyers' Committee for Civil Rights Under the Law and other public interest groups was based on Sec. 7 of the National Voter Registration Act (NVRA), which requires social services and other government agencies to register voters. In their lawsuit, Harkless v. Brunner, the Lawyers' Committee and the other groups argued that the Ohio Department of Jobs and Family Services (DJFS) offices were registering only a tiny percentage of their clients and that then-Secretary of State Kenneth Blackwell was not taking action to adhere to Section 7. The settlement filed in federal court in Cleveland requires state officials to ensure that low-income people are given the chance to vote. A statement from the Lawyers' Committee says the settlement will require the DJFS to "integrate voter registration directly into the benefits application and recertification process, as well as institute broad-ranging training, reporting and oversight procedures." 

In an Issue Brief recently released by ACS, Estelle Rogers analyzes the history of the NVRA, and maintains that state and federal officials have not done enough to enforce primary sections of the law, such as Section 7. Rogers, the consulting attorney at Project Vote, writes that state election officials must do more to uphold "their responsibilities under the NVRA." Rogers' Issue Brief, "The National Voter Registration Act: Fifteen Years On," is available here.

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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.

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The Supreme Court added to its docket and issued decisions involving a death-row inmate's ineffective counsel claim and photos of military treatment of detainees in Iraq and Afghanistan. In Porter v. McCollum, the high court reversed a federal appeals court decision that turned away George Porter Jr.'s ineffective counsel claim. In a per curiam opinion, the high court concluded that Porter, convicted in 1987 of murder, had been ill-served by his court-appointed attorney. As Tony Mauro reported for The BLT, the justices noted that Porter's attorney failed to introduce evidence of Porter's service in the Korean War and his post-traumatic suffering.

The justices wrote:

Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The high court's decision sends the case back to the U.S. Court of Appeals for the Eleventh Circuit for a new sentencing hearing.

As ACSblog noted yesterday, in Defense Department v. American Civil Liberties Union, the high court vacated a lower court ruling that would have forced the government to release photographs showing the treatment of military detainees in Iraq and Afghanistan. SCOTUSblog reports that the decision sends the case back to the U.S. Court of Appeals for the Second Circuit to reconsider its decision in "the wake of a new law Congress passed to keep those photos from public disclosure." The Obama administration argued against release of the photos, saying they would incite anti-American sentiment abroad and further endanger troops. The New York Times reports that a government brief in the case described some of the photos as showing soldiers holding guns to the heads of hooded and chained detainees. Steven R. Shapiro, the ACLU's legal director, said in a statement, "We continue to believe that the photos should be released, and we intend to press that case in the lower court. No democracy has ever been made stronger by suppressing evidence of its own misconduct."

The Court added three cases to its docket. The cases involve securities laws and whether they should apply to international dealings, a federal prison sentencing law and a double jeopardy case.

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Public defender offices handled 352 cases per attorney in 2007, according to a new report released by the Justice Department. The caseloads are unlikely to decrease amid state budget shortfalls.

Legal blogger Matt Kelley writes:

Staffing cuts -- and therefore, caseload spikes -- have been hitting [public defender] offices hard during this difficult year for state budgets. Support staff is sometimes the first to go when budgets get tight, and the loss of these critical team members can be devastating for the quality of representation. The [Justice Department] study found that the 17,000 attorneys in 2007 were aided by 11,000 support staff - from secretaries to file clerks to investigators and paralegals. Prosecutors have investigators on their side -- they're called police -- so when public defenders lose their investigators, the scales become even more unbalanced.

This weekend, a Kentucky county learned that it must cut 30 percent of its budget for next year and an Indiana county announced that it was cutting several attorney and support staff positions. Prosecutors' offices are feeling the pinch, too, and a Michigan DA is thinking about suing his own county over deep cuts on the table.

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FOIA FAIL: The Supreme Court vacated a ruling requiring the release of detainee abuse photos.

Next Stop, Charleston?: The South Carolina Attorney General said today that housing Guantanamo detainees at the naval brig near Charleston would put local residents at risk.

"...Must Be Brought to Justice": In a letter to the Attorney General, the American Bar Association backs federal trials for Khalid Shaikh Mohammed and other alleged terrorists.

Sssshhhh, Your Honor: Can federal courts handle classified evidence?

Abu Ghraib, Guantanamo, and Now: Bagram has recently been the site of detainee abuse, according to reports by The New York Times and The Washington Post.

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