September 2009

  • September 1, 2009
    Guest Post

    By Doug Kendall, Founder & President, Constitutional Accountability Center (on whose blog this piece was originally published.)

    You've probably heard by now that next week the Supreme Court will break up its summer recess to hear argument, for the second time, in Citizens United v. FEC. You may have the sense that this doesn't happen often and that something important is going on. If so, you're right and then some.

    The case involves a film, Hillary: The Movie, that was produced by Citizens United, a conservative, non-profit corporation, to coincide with the 2008 presidential primary season. The case began as a fairly sleepy challenge to the Federal Election Commission's (FEC's) decision to treat the film's production and release as corporate electioneering subject to campaign finance regulations, but was transformed by an order issued by the Supreme Court on June 29th. Here are five reasons why Citizens United is now a truly momentous case:

    1. 1. President Palin, Courtesy of Chevron: Let's start with the biggest and most obvious reason this is a momentous case. Citizens United is arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would do away with a distinction that has been in place in our Constitution since the Founding and our statutory law since the Tillman Act of 1907 (as explained in the brief CAC filed in Citizens United), and allow corporations to spend unlimited amounts of money in elections. To appreciate how scary this change would be, consider that, according to the FEC, the Republican and Democratic parties combined spent slightly more than $1.5 billion between January 1, 2007, and December 31, 2008, while Fortune Magazine reports that the 10 most profitable companies during the same period earned combined profits of over $350 billion. This contrast reveals that unleashing even a tiny fraction of corporate profits - from just a handful of companies - could overwhelm the campaign system with money that represents the narrowest interests of private, profit-driven entities.
  • September 1, 2009

    The Justice Department announced this week that Georgia State University College of Law professor Neil Kinkopf is joining the Justice Department's Office of Legal Policy (OLP) as OLP's counselor to the assistant attorney general. Kinkopf, the faculty advisor to the ACS chapter at Georgia State, has been a regular ACS participant.

    At the Justice Department, Kinkopf joins David Barron, former member of the board of advisors at the Harvard Law and Policy Review (the official journal of ACS,) and Martin Lederman, a regular ACS participant. Barron remains the de facto head of the Office of Legal Counsel (OLC) pending Senate confirmation of former ACS board member Dawn Johnsen to lead the office.

    Also at the Justice Department, are former ACS board member Spencer Overton and Chris Schroeder, co-author of ACS's Keeping Faith with the Constitution -- both of whom are at the OLP. And, of course, former ACS board member Eric Holder is serving as Attorney General.

  • September 1, 2009

    Breaking, from Scott Horton:

    Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.

    The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.


    "What the OLC memos did on a domestic basis, these documents show American diplomats attempting to do on the international stage," said Joanne Mariner, an analyst at Human Rights Watch with expertise on the U.S. extraordinary renditions program. 

    The documents are available here and here.

    Horton's analysis of the torture investigation recently announced by Attorney General Eric Holder is here.

    And on a peripherally related note, Andrew Sullivan just published this hard-hitting deconstruction of Marc Ambinder's Nazi/torture logic.