November 2009

  • November 30, 2009

    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.

  • November 30, 2009

    The use of solitary confinement is on the rise, according to a recent editorial in The Washington Post. In addition to increasing prisoners' risks of mental health issues, solitary confinement costs roughly twice as much as standard incarceration, says the Post.

    Assessing those subjected to solitary confinement, The Post states: 

    They are not, by and large, the "worst of the worst" -- mass murderers or psychopaths in the mold of Hannibal Lecter. They are, instead, men and women serving time for all manner of offenses, some of them relatively minor. But they have been deemed disciplinary problems -- or potential disciplinary problems -- by prison staffers. And so they find themselves locked up in what is commonly known as solitary confinement, sometimes for months, sometimes for years and sometimes with devastating consequences.  

    The constitutionality of long-term solitary confinement is currently being litigated by a group of prisoners known as "the Angola 3." They spent 23 hours per day confined to their cells in Louisiana's Angola prison for up to 37 years, and are challenging the conditions of their incarceration under the Eighth Amendment

    [Image via Derek Purdy.]

  • November 30, 2009
    Guest Post

    By Laurence Gold, a lawyer with Lichtman, Trister & Ross, PLLC in Washington, DC

    Today or soon the Supreme Court will decide Citizens United v. FEC and, possibly, hold that the government cannot prohibit nonprofit advocacy corporations - and perhaps also business corporations and unions - from using their regular treasury accounts (and not just their individual-funded federal PACs) for explicit "vote-for" and "defeat"-type electoral messages to the general public. If the Court does that, then no person or group - except, possibly, foreign nationals - could be precluded from undertaking so-called "express advocacy" "independent expenditures" about federal or state candidates.

    Much commentary on the case overstates how significantly that holding - overruling the Court's 1990 Austin v. Michigan Chamber of Commerce decision - would change constitutional law. The First Amendment already empowers businesses, nonprofit corporations, unions and other groups to publicly convey all but the most explicit election-influencing messages, and further protects their issue advocacy and lobbying. And, as a practical matter, corporations, unions and other groups only episodically exercise their substantial electoral communications rights, due to budgetary pressures, institutional culture, averseness to controversy, federal tax disincentives and sensitivity to shareholder, member and public opinion. Those constraints won't disappear.

    Progressives would do well to pay equal attention to what might happen if the Government wins this case. Rather then simply trying to preserve the status quo, the FEC and its amici - groups that lobby for more campaign finance regulation - are urging the Court to dramatically reduce First Amendment protections for independent speech. They argue that independent political speech can be outlawed on the theory that it "corrupts" candidates and officeholders because it is intended to "curry favor" with them and might cause them to "feel indebted." But the Court has consistently rejected that as a rationale to restrict speech, as distinct from political contributions that plainly risk a quid pro quo - the purchase of official favors - and only indirectly implicate free-speech interests.

    It would be distasteful enough if politicians' "feelings" could trump group free-speech rights in the electoral sphere. But it is hard to discern how even non-electoral speech that discusses public officials could avoid the same fate. Although the Government has backed off from its previous contentions in Citizens United that federal election law can ban books, its First Amendment posture in the case remains aggressively censorial.

  • November 25, 2009
    Let's Get Free
    A Hip-Hop Theory of Justice
    Paul Butler

    By Paul Butler, Associate Dean for Faculty Development & Carville Dickinson Benson Research Professor of Law, The George Washington University Law School

    Let's Get Free: A Hip-Hop Theory of Justice is about why locking up so many people is bad for the average law-abiding citizen. It might not be a thesis you'd expect from me, a former prosecutor, but making the streets safer is exactly why I wrote the book.

    The U.S. has the highest rate of incarceration in the history of the planet. We have 5 percent of the world's population, and 25 percent of the world's prisoners. Let's Get Free's main argument focuses on the "tipping point" that criminologists have demonstrated about this level of incarceration. When too many people are locked up, the crime rate actually goes up. Too much prison has the ironic consequence of being crimogenic.

    Let's Get Free suggests ways that we can safely reduce the number of people in prison. In addition to safer streets, a big advantage would be the diversion of billions of dollars out of locking people up (which costs about $50,000 annually per inmate) and back to more productive areas like education, health care and the environment. The fixes that Let's Get Free recommends range from helping at-risk students graduate from high school, to getting lead out of the environment (a high percentage of the people in prison for non-drug related crimes suffered lead poisoning as a child, which affects their brain in a way that makes them more violence-prone) to ending racial profiling.

    The book also includes more controversial recommendations, including strategic jury nullification to protest the war on drugs. Let's Get Free calls for "Martin Luther King jurors" who would consider acquitting defendants in non-violent drug cases, even if the defendant is technically guilty. This kind of protest is perfectly legal, and was credited with hastening the end of alcohol prohibition, the government's last failed "war on drugs."

  • November 25, 2009

    Lawyers Harangue Solicitor General: In their brief on civil immunity for the architects of torture, attorneys representing four former Guantanamo detainees offered what "may be the most eloquent statement on the issue I've seen yet," says Daphne Eviatar at The Washington Independent.

    Detainee Affairs Resignation: Phillip Carter is leaving his post as deputy assistant secretary of defense for detainee policy. Glenn Greenwald and Marcy Wheeler offer their takes.

    OLC Nominee: Is Dawn Johnsen on the cusp of being confirmed as the Office of Legal Counsel's top lawyer?

    KSM & the Death Penalty: Critics are concerned that executing Khalid Shaikh Mohammed and others convicted in terror-related charges may martyr them.

    More KSM: Adam Serwer untangles the arguments for and against trying KSM in federal court at The American Prospect's blog.