Tag: courts

President Obama signed the National Defense Authorization Act (NDAA) today despite his veto threat. The law now restricts detainee transfers out of military prisons in Afghanistan and Guantánamo Bay. “Obama attached a signing statement claiming that he has the constitutional power to override the limits in the law,” the New York Times reports. “Despite his objections, Mr. Obama signed the bill, saying its other provisions on military programs were too important to jeopardize.”

Obama’s three page signing statement objected to many parts of the bill. For example, Obama objects to what I’m calling the “Romney battleship preservation” clause:

In a time when all public servants recognize the need to eliminate wasteful or duplicative spending, various sections in the Act limit the Defense Department’s ability to direct scarce resources towards the highest priorities for our national security. For example, restrictions on the Defense Department’s ability to retire unneeded ships and aircraft will divert scarce resources needed for readiness and result in future unfunded liabilities.

But, more troublesome to the president and those of us who want to see Gitmo closed, is the NDAA interferes with his ability to close military detention prisons. He writes:

Several provisions in the bill also raise constitutional concerns. Section 1025 places limits on the military’s authority to transfer third country nationals currently held at the detention facility in Parwan, Afghanistan… Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress. Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief…

[…]

Section 1028 fundamentally maintains the unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This provision hinders the Executive’s ability to carry out its military, national security, and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principles… The Congress designed these sections, and has here renewed them once more, in order to foreclose my ability to shut down the Guantanamo Bay detention facility.

There has been much criticism of the 112th Congress as the worst Congress ever, but writing at Esquire today, Charlie Pierce observes that it is more than just Congress that is out-of-whack when it comes to governance. Presidential signing statements are another alarm warning us that our system of government is broken. Pierce writes:

Yes, Congress has partly tied his hands, and it has done so by making it harder for him to close Gitmo down. But, even against that, the president argues for the supremacy of the executive branch in such matters. That, coupled with a veto warning that was as empty as a toddler’s threat to run away from home, vitiates any case the president might choose to make that what he really wants to do is to protect the Bill Of Rights. The presidency has been allowed to become a dangerous beast over a number of decades, to the point where anyone who seeks it can rightly be presumed to have at least the spark of lawless authoritarianism in him. And, if that spark is there, the presidency will seek it out and bring it to flame. This president is no different.

Despite the conservatives’ deranged bluster, Obama is not acting differently from any other chief executive we’ve had since the end of World War II according to Pierce. For example, the Obama administration has refused to disclose which criteria are used to kill people with drone missile attacks. The legality of the strike that killed American-born Anwar al-Awlaki in Yemen is debatable.

Yesterday, a Freedom of Information Act lawsuit filed by ACLU and the New York Times was rejected by the U.S. District Court for the Southern District of New York. “Judge Colleen McMahon found that though she agrees that debate on the usage of drone strikes should be made in the open, she is unable to force the government to turn over the documents under FOIA”.

In her ruling, McMahon wrote:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States. The Alice-in-Wonderland [sic] nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.

From this Pierce concludes:

This is the way all presidents, most especially including this one, want it to be. This is the way the presidency has insisted on operating ever since the Cold War. This is what you get when you don’t listen to old Ike’s warning, when you let the Kennedys run amuck concerning Castro, when you let Lyndon fake an incident in the Tonkin Gulf, when you impeach Nixon over a burglary and not the illegal bombing of Cambodia, when you let everyone skate on Iran-Contra, when you impeach one president over a blowjob but let another one slide for lying the country into a war, for abrogating treaties and violating international law regarding torture, when you let a sociopath like Richard Cheney anywhere near the levers of power, and when you let a president decide which American lives or dies by standards he declines to share with the rest of us. This is what you get. Barack Obama didn’t sell out the Bill Of Rights today because he’s Barack Obama. Barack Obama sold out the Bill Of Rights today because he’s the president of the United States, and that’s now part of the damn job description.

If the job description for the President of the United States is to sell out the Bill of Rights, then America has more problems than just the worst Congress ever. The separation of powers, our whole system of checks and balances, are rotting away. This is the core of our Constitution.

While many of us on the left trust President Obama to do the right thing. The problem is that Obama will only be at the White House for four more years. Instead of having laws to protect us the abuse of power, we are left with having personalities to protect us from the abuse of power. What happens with the next president? Will he or she ignite that “spark”?

Presidents have proved to be unwilling to relinquish any power secured by their predecessors. For example, in 2008, soon-to-be former Vice President Cheney predicted then President-elect Obama would “appreciate” the expansion of presidential power that happened in the Bush administration. Cheney said:

Once they get here and they’re faced with the same problems we deal with every day, then they will appreciate some of the things we’ve put in place…

I believe very deeply, in a strong executive, and I think that’s essential in this day and age. And I think the Obama administration is not likely to cede that authority back to the Congress. I think they’ll find that given a challenge they face, they’ll need all the authority they can muster.

In turn, then-President-elect Obama said four years ago that he was reluctant to investigate Bush-era abuses of power, citing his “belief that we need to look forward as opposed to looking backwards.”

The inability of neither our partisan Congress nor our self-interested executive branch nor our law-twisted courts to investigate or limit or hold accountable the expansion of presidential power demonstrates a systemic flaw on our republic. This growing inability to hold accountable those serving in our nation’s highest offices allows for more potential abuses of power.

When presidents believe it is necessary to sign bills with caveats, because a veto means throwing needed legislation back to a dysfunctional lawmaking body; when the presidency collects more power and all that is needed for the person in the Oval Office to get a “spark” of authoritarianism to burst into flame; when our federal judges cannot find themselves in a “Catch-22” situation making it impossible to hold the executive branch accountable nor require them to explain their secrecy, then we have more problems than just the worst Congress ever. We’re getting closer to the worst government ever.

The nation’s constitutional core is rotting away.

_{Cross-posted from Daily Kos.}

We often talk about the problems of the criminal justice system, particularly as pertains to unfair treatment towards minorities and marginalized groups. I sympathize with the plight of those for whom this is a daily reality, but I admit I cannot completely understand. Many times, violence against women goes unreported or is sloppily prosecuted. And it is for this reason that I share my own story, though one needs to reverse the gender in this circumstance. The system is designed to prosecute men who harass, physically injure, or otherwise harm women. When the reverse is true, the existing framework of laws and statutes is not easily able to respond. Men are supposed to be able to handle their own problems, but women are supposed to be sheltered from them. This doesn’t mean that women aren’t vulnerable in all sorts of ways, but that it’s just as condescending to imply that women don’t harm men.

Those who support Progressive causes are in an odd position these days: we’re often in the majority on issues that matter; and we’re seriously talking about how to turn what, just a few years ago, was a wish list…into a “reality list”.

Staying in the majority, however, requires the assistance of centrist voters–and that means, from time to time, finding philosophical compromise with voters we’d like to keep “in the fold”.

In years past, the issue of the death penalty has created a considerable chasm between Progressives and centrists; with the one side concerned about the misapplication of capital punishment, and the other convinced that, for the most heinous of crimes, the only way to achieve a truly just outcome is for the guilty party to face the most severe of punishments.

What if we could bridge that gap?

In today’s discussion we propose to do exactly that: to create a death penalty process that only executes those who are truly guilty and excludes those who might not deserve to be put to death…in fact, those who might not be guilty of any crime at all.

Cross-posted from www.progressive-independence.org.

A court of appeals claims that prisoners held at Gitmo are not people, and therefore have no rights – much less the right to sue their torturers, according to the following article from the Center for Constitutional Rights.

Full article reproduced below.

Who Remembers the Snail Darter case?

Or the Crazed Rabbit that attacked Jimmy Carter’s fishing boat in the 70’s?

This is the tale of the tragic flooding of the Valley of the Little Tennessee River, the heroic folks who fought the TVA action, the creative lawyers and law students who won the precedent setting supreme court decision, the brave settlers whose farms were taken and the stoic Native Americans whose homeland it was before – and the roles of the snail darter and the crazed rabbit.  And how it all comes down to – you guessed it – politics.

I meant to write this a couple weeks ago, but got distracted by my own environmental activism, Sierra Club monthly and quarterly meetings, showing William McDonough’s great film the Next Industrial Revolution, Earth Day events, lobbying in the state legislature for an increase in the coal severance tax, and an on-site with some other activists and OSM of a mountaintop removal site.  

I originally thought I might tie this up with a message about activism to effect change.  Don’t know that I’ll make it to that point, as I am certainly demoralized recently about my own local efforts. And am ready to take a break in my garden for the summer.  Maybe that’s change enough . . .

But the story of the snail darter case is a great one . . .