September 2010

  • September 9, 2010

    by Jeremy Leaming

    The federal appeals court decision rejecting a lawsuit brought by former prisoners charging the CIA with abducting and transporting them to secret prisons in other countries where they were tortured is garnering widespread derision as a dangerous continuation of unwieldy executive power.

    In Mohamed et al. v. Jeppesen Dataplan, Inc., the full U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit lodged in 2007 on behalf of five men kidnapped by the CIA and sent to other countries for imprisonment and interrogation. The ACLU represented the men and argued that they had been tortured during their imprisonment. The Bush and Obama administrations argued that the lawsuit should be dismissed because it could uncover so-called "state secrets," undermining national security. The Ninth Circuit sided with the government, maintaining that it represented a "rare case" in which the government's claims to protect national security were stronger than considering whether human rights were violated.

    The ACLU's Ben Wizner, who represented the former prisoners, said in a press release, "This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court."

    The New York Times editorial board blasted the Ninth Circuit's decision, saying it "diminishes any hope that this odious practice [extraordinary rendition, where military captives are sent to secret prisons in other countries] will finally receive the legal label it deserves: a violation of international law."

    The Atlantic blogger Andrew Sullivan writes:

    The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

    The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

    For discussion on the history of the government's use of the "state secrets" privilege, see an ACS panel discussion, including Wizner, here.

  • September 9, 2010

    Two days after U.S. District Court Judge Royce Lamberth refused to stay his order blocking federal funding for embryonic stem cell research, the U.S. Court of Appeals for the D.C. Circuit granted the Obama administration's emergency request for a stay.

    In its order, the court used "standard language" indicating that the stay would give the court time to consider the merits of the motion, and should not be read as a ruling on the merits, The Blog of the Legal Times reports. The court set deadlines for the plaintiffs to respond to the stay request, and for a Department of Justice rebuttal.

    In its request for a stay, the administration argued that "[d]isruption of ongoing research will result in irreparable setbacks and, in many cases, may destroy a project altogether," and that the injunction is at odds with the intent of Congress when it passed the law, Reuters reports.

    Law and biosciences expert Hank Greely wrote in an ACSblog post that Judge Lamberth's initial opinion was "disappointingly bad," and predicted that the D.C. Circuit would first stay the order and then reverse it.


  • September 9, 2010
    Beyond calling for a repeal of the 14th Amendment's birthright citizenship clause, proponents of harsh crackdowns on undocumented workers and families are now targeting public school children, writes Catherine A. Traywick for The Media Consortium.

    Traywick notes, "California, New York, Iowa and Colorado are among the states that have cracked down on immigrant students by hiring ICE [U.S. Immigration and Customs Enforcement] agents to investigate residency statuses or unlawfully barring students from enrolling. Such blatant discrimination files in the face of the 14th Amendment and Supreme Court precedent, both of which guarantee all children the right to a public education regardless of immigration status."

    Traywick's piece goes on to note that there are efforts in New Jersey to strip immigrants of social services. According to a lawsuit lodged by several documented immigrants, the state's human services department is violating the equal protection clause of the Constitution "by denying health care subsidies to legal permanent residents."

    The 14th Amendment states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

    But as noted earlier this summer by University of Baltimore School of Law Professor Garrett Epps a movement has formed that is "urging Congress and the courts to simply ignore the Citizenship Clause and pass laws purporting to strip citizenship from American children because of their parents' immigration status."

  • September 9, 2010
    Last Words of the Executed
    Robert K. Elder

    By Robert K. Elder, author of Last Words of the Executed and a regional editor for AOL's in Chicago. Visit the book's official website here.
     While other books have recorded the last words of the rich, respected and famous, I sought to document the final thoughts of the most discarded members of our society in Last Words of the Executed. It's an oral history of the overlooked, the infamous and the forgotten in a history of capital punishment in America as told from the gallows, the chair, and the gurney.

    It's a nonpolitical book, simply asking: If these are the most dangerous, reviled members of society - why does it remain a cultural value to record what they say? And what can we learn from them?

    While doing research for Last Words of the Executed, I interviewed Rev. Carroll Pickett, a former death row chaplain who took the last words of 95 condemned prisoners in Huntsville, Texas. He was convinced that at least one of them - Carlos De Luna - was innocent. And he posed this question to me: Do the innocent die differently than the guilty?

    My focus for the last seven years has been on the words themselves, but Pickett's question haunts me. Last Words of the Executed records final statements all the way back to the 17th Century and, since that time, more than 16,000 men and women have been executed on these shores for crimes ranging from kidnapping and theft to espionage and murder. Only a few of them have been posthumously found innocent and exonerated, most famously the accused Salem witches.

    Sarah Good was executed with four other accused witches on Gallows Hill in 1692. When urged by Rev. Nicholas Noyes to confess, Good called him a liar, then delivered her final, famous last words:

    "I am no more a witch than you are a wizard, and if you take away my life, God will give you blood to drink."

    We often forget that 20 people lost their lives during the witch hunt, 19 hanged and one crushed to death, with many more deaths in prison.

    The last words I collected ranged from awe-inspiring to horrific; they are calls for peace and cries against injustice. Just as often, these final words are accepting, confessional, and consoling. Still others can be venomous, rage-fueled diatribes. Almost all statements fit into at least one of the well-known stages of grief: denial, anger, bargaining, depression, and acceptance. Good sounds as if she was angry. Very, very angry.

    While I strived to make Last Words of the Executed an apolitical volume, there's no ignoring the passionate debate over the death penalty in the United States. In fact, many of the executed quoted in the book used their last breaths to proclaim their innocence and protest capital punishment. Roger K. Coleman, executed by the state of Virginia in 1992 for the rape and murder of his sister-in-law Wanda McCoy, is one example. As guards strapped him into the chair, Coleman declared:

  • September 8, 2010
    The slug's pace with which the Senate is confirming the Obama administration's judicial nominations continues to garner media attention and derision from those concerned about a federal bench that has a growing number of vacancies.

    A recent Associated Press article notes that Senate Republicans have remained steadfast in their determination to stall the administration's judicial picks, which has resulted in a situation where the administration has "put fewer people on the bench than any president since Richard Nixon at a similar point in his presidency." The AP notes that "there are 45 nominees awaiting action, two for nearly 13 months."

    Yesterday, The Huffington Post's Sam Stein noted that although the administration has voiced anger over Republican obstructionism "even sympathetic observers acknowledge that the president is largely powerless (if not helpless) on the matter." Stein maintains, "That's because both he and allies in Congress simply lack the tools to force the Republican Party's hand."

    In a piece for the Constitutional Accountability Center's Text & History blog, Judith E. Schaeffer writes that even the president's least controversial nominees - and he has few that have drawn serious controversy - have been victims of the obstruction. Schaeffer notes that in early spring Kimberly Mueller was nominated to fill a vacant seat on the Eastern District of California "and was approved by the Senate Judiciary Committee on May 6 without opposition, yet is languishing in Senate limbo, still waiting for a confirmation on the Senate floor."

    Schaeffer says Mueller is "about as uncontroversial as judicial nominees get," citing her sterling legal credentials, including the ABA's top rating and a stint as a U.S. Magistrate Judge in California.

    Schaeffer blasts the Senate Republican's tactics, writing:

    So why is Kimberly Mueller still waiting for a vote? The answer is simple, and unacceptable. Throughout the Obama presidency, Senate Republicans have taken judicial obstructionism to an entirely new level, abusing the Senate's procedural rules to block even the most uncontroversial of the President's judicial nominees and giving new meaning to the phrase "Just Say No." Mueller is one of many of these new pawns in this obstructionist game, which Republicans are playing to increase the backlog of nominees on the Senate floor and keep President Obama from filling judicial vacancies. This rank, hyper-partisanship diminishes the ability of our federal courts to dispense justice fairly and timely, and should concern every American, no matter his or her political leanings.

    As noted here yesterday, President Obama has urged the Senate to cease with the delays, and recently Supreme Court Justice Anthony Kennedy has joined that call.

    In article for The Huffington Post, ACS Executive Director Caroline Fredrickson wrote, "The vacancies on the federal bench will continue to grow, considering the glacial pace at which the Senate is moving on the president's judicial selections, resulting in a judicial system that is already overburdened coming to a grinding halt."

    To follow the growing crisis on the federal bench, visit the ACS web-based project,, which includes an interactive map detailing where the vacancies are and how long nominees have languished. Updates from are available via its Facebook page.