Seven months ago, the United States issued a list of human rights commitments and pledges in support of U.S. candidacy for membership in the U.N. Human Rights Council. The decision to join the Human Rights Council was the right thing to do. It was as an important step in breaking with the Bush administration's unilateral and disastrous policies on human rights. While we welcomed this move, we noted that the Obama administration had "missed an opportunity to detail exactly how it will reaffirm its commitment to ending human rights violations at home beyond vague rhetoric." We warned the Obama administration to "move beyond ambiguous commitments which are similar to the ones heard from the Bush administration over the past eight years."

There is no question that this administration is currently facing multiple and daunting challenges, including the wars in Iraq and Afghanistan and the safe closing of Guantánamo, the economic crisis and rising unemployment, health care, energy reform and much more. However, nearly a year after Obama's inauguration, the administration has yet to announce any major domestic human rights initiative, outline a detailed plan to honor and expand our existing human rights commitments and translate them into domestic policy, or incorporate them into the daily working of the U.S. government.

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The Environmental Protection Agency (EPA) announced yesterday that greenhouse gases are, in fact, harmful to human health and the environment. The EPA's ruling is the most direct government-backed pronouncement of the harmful effects of greenhouse gases. The EPA released the findings as part of a study ordered by the Supreme Court in 2007. At the time, the high court ruled that despite objections by the EPA it did have the authority to regulate greenhouse gases pursuant to the Clean Air Act. The EPA's findings announced this week clear the way for it to develop and implement regulations that will curb greenhouse gas emissions in the U.S.

The EPA's announcement stirred familiar debate on the matter. The National Association of Manufactures again claimed that combating pollutants will harm business production, claiming that new regulations would "come at a huge cost to the economy."

Many climate change experts, however, lauded the EPA's findings as reflective of the Obama administration's commitment to addressing greenhouse gas emissions and clean energy. "'The stage is now set for E.P.A. to hold the biggest global-warming polluters accountable," said Emily Figdor, federal global-warming program director for Environment America. The EPA's report coincides with the start of the UN climate change conference in Copenhagen, which began this week. It is expected President Obama will reference the findings at the conference as evidence that the U.S. is taking the lead in addressing climate change. 

[image via James Durkee]

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On Countdown with Keith Olbermann, Scott Horton examined the report released by Seton Hall University on three "suicides" of Guantanamo detainees in 2006.

"The task that the Seton Hall authors took upon themselves was to review the work that was done by the military investigators, not to do their own investigation," said Horton. "And I think they demonstrate conclusively that the military investigation was profoundly flawed, that it rushed to judgments that really weren't supported by the evidence."

"We need a new, serious investigation," Horton concluded.

Visit msnbc.com for breaking news, world news, and news about the economy

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The effort to improve diversity in college football coaching seems to be getting a slight boost, USA Today reports. The newspaper notes that with Virginia's hiring of Mike London, there are now 12 minority head coaches in the "120-school Football Bowl Subdivision." But the report notes that while the new number is a record, it "is low in a sport in which nearly two-thirds of all players are minorities."

In a 2008 Issue Brief, published by ACS, Washington, D.C. attorney Douglas C. Proxmire examined the NFL's Rooney Rule, which requires pro-teams with head-coaching vacancies to interview one or more minority candidates, and concluded that it should be expanded to other sporting arenas, such as college football.

Proxmire wrote, "NCAA Division I college football would appear to be the next logical arena for adoption of the Rooney Rule, as some measure is desperately needed to address the woeful disparity between minority head coaches and minority Division IA football players." Proxmire noted in his Issue Brief, "The Rooney Rule, Its Application and Ideas for Expansion," that while the NCAA "has resisted taking the formal step of implementing the Rooney Rule, the NCAA Division I Athletic Director's Association has made a commitment to interview at least one minority candidate when an NCAA Division I football head coaching position opens."

Tony Dungy, former coach of the Indianapolis Colts, who is encouraging the NCAA to diversifying its coaching ranks, told USA Today that the new hires were a hopeful signal, but that he was waiting to see what happens at BCS schools because "that's the place we have to look, because that's where you have a chance to win a national championship."

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Legal aid services for the economically hard hit continue to be woefully underfunded as the desire and need for them rise. Mary Pat Flaherty of The Washington Post focuses on the D.C. region, noting that in Maryland, the Chief Judge of the Maryland Court of Appeals has "urged lawyers to donate time or money to preserve the programs." The programs receive a lion's share of funding from interest on funds that law firms hold in escrow for clients. But with markedly low-interest rates, The Post reports, legal services have suffered.

The Post writes:

At the very time that more newly poor need help with the likes of mortgages, rent disputes and battles over wages, clinics across the country that help with noncriminal cases are enduring sharp funding drops.

The newspaper notes that nationally "interest on lawyers' trust accounts has fallen from $371 million in 2007 to a projected $93 million this year."

At an event hosted earlier this year by ACS, the Center for American Progress and the Washington Council of Lawyers, experts explored the Great Recession's impact on the availability of legal aid services. Click on picture to watch the discussion. 

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Tomorrow's scheduled execution of Kenneth Biros may be a first in U.S. history. Biros, convicted of killing and dismembering a woman in 1991, has been delivered to the Southern Ohio Correctional Facility in Lucasville where he awaits lethal injection by a single-drug.

The one-drug protocal was embraced by state authorities last month after Ohio botched the execution of condemned murderer Romell Brown. Biros is scheduled to be injected intravenously tomorrow with about 14 times the dosage of anesthetic used in other states' lethal injection protocals. Experts indicate that the one-drug method is likely to induce death more slowly than Ohio's former method, which states have relied on as the exclusive method of lethal injection since restoration of capital punishment in the 1970's.

These points are not lost on Biros' attorneys, who are appealing the methodology of his scheduled execution to the U.S. Court of Appeals for the Sixth Circuit as well as the U.S. Supreme Court.

[Image via ZaldyImg.]

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Suspicious Deaths at Guantanamo: Jeralyn, at TalkLeft, outlines a new report calling into question three detainees' "suicides" at Guantanamo in 2006.

Three Guantanamo Deaths; Three Takes: By Glenn Greenwald, Marcy Wheeler and Scott Horton.

Protest of KSM Trial: New York City played host to a protest, this weekend, of the domestic trial for Khalid Shaikh Mohammed and other suspects, recently announced by Attorney General Eric Holder.

Explaining Resistance to Domestic Terror Trials: Dahlia Lithwick and Adam Serwer take stabs at understanding opposition.

Mumbai Terror Suspect Charged: The Justice Department announced charges against former Drug Enforcement Agency cooperator David Headley.

Movin' On Up?: The federal government appears likely to purchase the Thomson Correctional Center in Illinois for housing Guantanamo detainees.

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The Supreme Court added two cases to its docket this morning, concerning a law school's anti-discrimination policy and sentencing guidelines. In Christian Legal Society v. Martinez, the high court will decide whether University of California Hastings College of Law's policy of refusing to recognize student groups that discriminate violates the First Amendment rights of a Christian group that does not allow lesbians and gay men to be voting members. The U.S. Court of Appeals for the Ninth Circuit upheld the university's policy, but the Christian Legal Society has asked the high court to reverse that decision. The law school's policy, The Associated Press reports, denies official status to groups that exclude people for a number of reasons, including their religious belief and sexual orientation.

In Dillion v. United States, the high court will decide whether sentencing guidelines were properly followed by lower courts in a case involving a man convicted of drug and firearm charges. 

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The debate over abortion coverage within the larger health care reform dialogue has been painfully narrow for those of us who believe that as a matter of equality, due process, and sound public health policy, abortion should be treated like other medical procedures. From early on when the so-called Capps Amendment, with the support of pro-choice members of the House, was added to the original bill, the best that abortion rights supporters could hope for was that plans within the exchange would voluntarily cover abortion, so long as federal funds were not used and were strictly segregated. Coverage of abortion within the public option would be left to the discretion of the administration. With the adoption of the Stupak Amendment by the House, the situation is now even worse - abortion coverage can only be offered through a separate rider, and cannot be included in the public option, thus making it unlikely that women will be able to obtain abortion coverage at all, even with their own money. The current Senate bill contains language similar to the Capps compromise, but the Senate will also consider further restrictions on abortion coverage.

The current debate over insurance coverage for abortion focuses on how best to reflect the so-called status quo that federal money will not be used to fund abortions. That status quo is the direct result of the Supreme Court's misguided decision in Harris v. McRae. In Harris, five members of the Court upheld the Hyde Amendment, an appropriations limitation passed annually by Congress, which limits federal funding of abortions to procedures necessary to save the woman's life or to terminate a pregnancy resulting from rape or incest. That limitation stands in stark contrast to the far broader "medically necessary" standard applicable to all other health services provided under the federal Medicaid program. The Harris majority upheld the funding limit against a due process challenge on the grounds that the ban "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy," and constitutes a valid expression of government preference for childbirth over abortion. According to the majority opinion, "the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all."

As Justice Brennan argued forcefully in dissent, the majority failed to recognize the coercive effect of the Hyde Amendment:

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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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