July 2009

  • July 31, 2009
    Guest Post

    By Sudha Setty, Assistant Professor of Law, Western New England College School of Law. Professor Setty is the author of a recently released ACS Issue Brief, "National Security Without Secret Laws: How Other Nations Balance National Security Interests and Transparency of Law."

    A fundamental tenet of the rule of law is that a state has no secret laws. Yet in the post-September 11, 2001 era, the Bush administration maintained secret legal policies governing parts of the "war on terror" that implicated human rights and civil liberties issues. Some of these then-secret legal policies-such as the 2002 and 2003 Office of Legal Counsel (OLC) memoranda sanctioning torture during the interrogation of suspected terrorists-staked out positions at odds with legislation, treaties and court decisions. Both the substance of these memoranda and the secrecy surrounding them were rightly criticized by many scholars and activists-notably including Dawn Johnsen, President Obama's nominee to head up the Office of Legal Counsel.

    But is disclosure and transparency really feasible when we're talking about counterterrorism, or do we undermine our national security programs in an effort to adhere to the rule of law? The Bush administration defended its extreme lack of disclosure by claiming that various legal policies, including the OLC memoranda, would, if disclosed, assist the cause of those plotting terrorist acts against the United States. In my recently released Issue Brief, I reject this particular defense of secrecy based, in part, on the fact that other nations facing serious national security issues-I consider India, Israel and the United Kingdom-do not resort to the creation of bodies of secret law to provide legal comfort for their counterterrorism operations.

    The substance of India's antiterrorism policies is often harsher than what has been (thus far) established in the United States-for example, antiterrorism laws allow for lengthy preventive detention and the denial of substantial access to counsel before trial. However, the process by which Indian antiterrorism legal policy is developed is relatively transparent. Repeatedly, the question of how to frame a long-term legislative response to terrorism has been referred to the Indian Law Commission, a nonpartisan commission of respected lawyers and jurists who respond to government requests for legal recommendations. The Law Commission circulates its reports and recommendations to the public and distributes reports to government officials for review, comments and, ultimately, debate in Parliament.

  • July 31, 2009
    Guest Post

    By Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University & author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago, 2009)

    Yesterday's revelations about Karl Rove's hand in the firing of U.S. attorneys make clear that the time has come to protect U.S. attorneys, by statute, from at-will discharge. Like other quasi-independent law enforcers - members, for example, of the Federal Trade Commission - they should be subject to discharge only for good cause, such as malfeasance, neglect of office or incapacity. The rule of law depends on the public's confidence in the evenhanded administration of justice. The Bush White House proved that such confidence may well be unwarranted under the current system.

    It has long been executive branch folklore that the President is constitutionally entitled to fire U.S. attorneys at will. This is not true. The Supreme Court correctly held in Morrison v. Olson that Congress is entitled to insulate officers of the United States from at-will political discharge unless that insulation would disable the President from executing his own constitutional functions.

    As revealed by Morrison v. Olson - and a cursory review of U.S. history - the President has no Article II entitlement to policy control over the federal prosecutorial function. If he did, then Morrison v. Olson, which upheld statutory provisions limiting the President's capacity to fire independent counsel, would have had to come out the other way.

  • July 30, 2009

    The recent announcement of a deal between Microsoft and Yahoo! preceded letters to advertisers and ad agencies by both company's extolling the virtues of the deal struck. Foremost among the selling points being offered by the two tech giants is that the deal will supposedly encourage competition in the search engine market.

    Under the deal, Microsoft's technology will power Yahoo!'s search pages and related advertising. This combines the second and third most popular search engines in the American market. Google presently dominates the market, attracting approximately two-thirds of American users.

    Sen. Herb Kohl (D-Wisc.), chair of the Senate Judiciary Sub-Committee on Antitrust, said that the deal combined "industry giants and direct competitors in Internet advertising and search markets," and thus deserves "careful scrutiny."

    Michael Callahan, general counsel for Yahoo! stated the companies' belief that the deal is "really the only way to ensure" that there is "going to be a competitive long-term alternative to Google in paid search."

  • July 30, 2009
    The Next Justice
    Repairing the Supreme Court Appointments Process
    Christopher L. Eisgruber, Provost & Laurance S. Rockefeller Professor of Public Affairs, Princeton University

    On the first day of her confirmation hearings, Judge Sonia Sotomayor addressed the Senate Judiciary Committee and explained her approach to judging. "In the past month, many senators have asked me about my judicial philosophy," she said. "It is simple: fidelity to the law. The task of a judge is not to make law - it is to apply the law."

    It was, as Yogi Berra might have said, déjà vu all over again. John Roberts told the Senate that he was just an umpire calling balls and strikes. Sonia Sotomayor said that she was just applying the law to the facts. Really now; give us a break! Yes, judges should be faithful to the law. Problem is, the law is often unclear-especially in the Supreme Court, which accepts cases only if they pose novel legal issues.

    All the justices on the Supreme Court are doing their level best to be faithful to the law, but they reach very different conclusions about what it requires. Isn't that why we watch the Supreme Court confirmation hearings? If judges were just umpires, if their judicial philosophies amounted to nothing more than ‘fidelity to law,' neither we nor the senators would care so much about who was appointed.

    So why can't we have a more honest public conversation about what makes for a good Supreme Court justice? That question is the starting point for The Next Justice: Repairing the Supreme Court Appointments Process. Its goal is to provide a better description of what Supreme Court justices actually do and thereby to improve the national argument about who should be selected.

  • July 29, 2009
    Guest Post

    By Estelle Rogers, Consulting Attorney, ProjectVote

    The National Voter Registration Act (NVRA) has been a disappointment. When the statute was passed in 1993, the civil rights community hailed it as the capstone of the "voting rights revolution" begun by the Voting Rights Act of 1965. In a new report from Project Vote, "The National Voter Registration Act at Fifteen," voting rights attorney Estelle Rogers hones in on several of the most important provisions of the NVRA and finds their impact far less dramatic than expected. Despite the promise of the NVRA, voter registration problems were frequently cited as THE ISSUE marring the 2008 election, just as hanging chads were in 2000 and long lines in 2004.

    The NVRA was enacted in response to the shocking statistic that 44 percent of the eligible electorate did not vote in the 1992 presidential election. The legislation's sponsors believed that making it easier to register would eliminate one major barrier to low participation in the future. The primary means Congress chose to increase the number of registered voters was to mandate that registration be offered at places not generally used for that purpose, such as motor vehicle offices and public assistance and disability agencies. Actually, "motor voter" was the original concept. Other agencies were only added later, at the urging of voting rights advocates, who recognized that a broad swath of the American public-particularly low income and minority citizens-does not interact with the DMV at all.