Tag: Constitution

Does anyone recognize this man?

Obama said the United States can effectively fight al-Qaida and its affiliates, “but we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability.”

“We must never — ever — turn our back on its enduring principles for expedience sake,” he said.

Speaking in Washington’s National Archives building, where the U.S. Constitution, Bill of Rights and Declaration of Independence are kept, Obama said the United States must continue to see those documents as the “foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity around the world.”

That was President Barack Obama less than two years ago. My how this man has shed his skin and aligned himself with all the policies he condemned.

Rights Are Curtailed for Terror Suspects

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

snip

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

Some bloggers with more legal background than I have (which is not much) are questioning the authority of the DOJ to change Miranda rights without legislation or a Supreme Court ruling.

From Jeralyn Merritt at Talk Left:

The remedy for a Miranda violation is suppression of the statements, and any evidence derived from them, at the trial of the person who made them. Other defendants ordinarily wouldn’t have standing to challenge the statements at their trial, since it wasn’t their rights that were violated. But, what if there’s a policy that intentionally flouts Miranda? Is that a due process violation like outrageous government misconduct that could be raised by defendants against whom the statements were offered even if they weren’t the person whose Miranda rights were withheld?

At emptywheel, bmaz has this to say:

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite correct.

It was bad enough for the Obama Administration, headed by the supposed and so called “Constitutional scholar” Barack Obama, to propose inappropriate and unconstitutional legislation to restrict criminal suspects’ Constitution based Miranda rights, but it is an egregious step beyond to simply arrogate to themselves the unitary and unilateral power to do it by DOJ memorandum fiat.

(emphasis mine)

And the final word from Glenn Greenwald at Salon:

The right here is established by the Supreme Court as guaranteed by the Constitution, and the specific right in question — not to have pre-Miranda statements admissible in court — is one the administration cannot change and does not purport to. But the guidelines long in place for reading a detainee his rights were vital to preserving the Miranda framework — for preventing abusive interrogations and coerced statements — and it is this protection which the Obama DOJ is seriously diluting with such a permissive and discretionary standard.

Worse, the administration tried but failed to convince Congress to modify it with legislation. But, as we well know, nothing deters a President’s will: so they just went ahead and did it on their own. The very same political faction that spent the last decade decrying assertions of unconstrained executive power and the ignoring of Congressional will in the area of civil liberties is now its enthusiastic champion.

When it comes to debates between Left and Right over the Constitution and due process, Miranda has always been viewed as one of the key defining issues. Richard Nixon was obsessed with demonizing the Warren Court for providing too many rights to the accused, and his attacks on Miranda were part of a decades-long war by the American Right on the constitutional liberties established over the last half-century. With a swoop of a pen — more than 9 years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving.

What they said.

Over the last week or so a trend has emerged to rewrite, or radically edit, parts of historical documents because some would like to revise history, pretend it never happened, because it is uncomfortable or embarrassing. Two cases stand out more than any others. First, there was the “rewriting” of Mark Twain‘s classic novel of childhood in the South, Huckleberry Finn which was edited to remove the “N” word. The other was the new Republican controlled House of Representatives reading their version of the US Constitution. I didn’t know there was another one, silly me.

I’ll start with the Washington Post’s columnist, Dana Milbank. Yes, Dana, who rarely says anything I can agree with but he managed to surprise me with this from his Op-Ed, A Sanitized Constitution

Reading the document aloud failed to re-affirm lawmakers’ fealty to the framers.

It was a straightforward proposition: The new House Republican majority would lead the chamber in reading the Constitution. But nothing in Congress is straightforward, and the moment the lawmakers began the exercise Thursday morning, they bogged down in a dispute.

They couldn’t agree on which version to read.

Now most Americans are of the impression that there isn’t, say, a King James version of the Constitution and a New International version of the Constitution. There is only one version. But our leaders had other views. . . . .

In fact, there is only one version of the Constitution – and it wasn’t what the lawmakers read aloud. What the Republican majority decided to read was a sanitized Constitution – an excerpted version of the founding document conjuring a fanciful land that never counted a black person as three-fifths of a white person, never denied women the right to vote, never allowed slavery and never banned liquor.

The idea of reading the Constitution aloud was generated by the Tea Party as a way to re-affirm lawmakers’ fealty to the framers, but in practice it did the opposite. In deciding to omit objectionable passages that were later altered by amendment, the new majority jettisoned “originalist” and “constructionist” beliefs and created – dare it be said? – a “living Constitution” pruned of the founders’ missteps. Nobody’s proud of the three-fifths compromise, but how can we learn from our founding if we aren’t honest about it?

What can I say? But that the revisionist Republicans would like you to believe that the US is a “perfect” union. Well, not quite yet but despite them, some of us are still striving.

Now there is the sanitizing of “Huckleberry Finn” by Alan Gribben, a professor of English,  because the use of the “N” word  throughout the book that may have

resulted in the novel falling off reading lists, and that he thought his edition would be welcomed by schoolteachers and university instructors who wanted to spare “the reader from a racial slur that never seems to lose its vitriol.” Never mind that today nigger is used by many rappers, who have reclaimed the word from its ugly past. Never mind that attaching the epithet slave to the character Jim – who has run away in a bid for freedom – effectively labels him as property, as the very thing he is trying to escape.

Correct me if I’m wrong but isn’t encouraging students to think and exposing them to facts part of teaching? Since when does taking offense words out of books, or for that matter entire books out of a curriculum, foster understanding? It is and it doesn’t. We need to know history to understand it. We need to read the facts and words that make us uncomfortable in our own “skin”.

New York Times book reviewer, Michiko Kakutani, writes:

Controversies over “Huckleberry Finn” occur with predictable regularity. In 2009, just before Barack Obama’s inauguration, a high school teacher named John Foley wrote a guest column in The Seattle Post-Intelligencer in which he asserted that “Huckleberry Finn,” “To Kill a Mockingbird” and “Of Mice and Men,” don’t belong on the curriculum anymore. “The time has arrived to update the literature we use in high school classrooms,” he wrote. “Barack Obama is president-elect of the United States, and novels that use the ‘N-word’ repeatedly need to go.”

Haven’t we learned by now that removing books from the curriculum just deprives children of exposure to classic works of literature? Worse, it relieves teachers of the fundamental responsibility of putting such books in context – of helping students understand that “Huckleberry Finn” actually stands as a powerful indictment of slavery (with Nigger Jim its most noble character), of using its contested language as an opportunity to explore the painful complexities of race relations in this country. To censor or redact books on school reading lists is a form of denial: shutting the door on harsh historical realities – whitewashing them or pretending they do not exist.

(emphasis mine)

As Adam Sewer observed comparing the Republican “edition” of the Constitution and the edited version of Twain’s classic, “This kind of political correctness offers no justice to the descendants of slaves — it merely papers over a terrible ugliness that is an essential part of American history.”

I’ll leave the final thought to Jamelle Bouie, who said it best:

But erasing “nigger” from Huckleberry Finn-or ignoring our failures-doesn’t change anything. It doesn’t provide racial enlightenment, or justice, and it won’t shield anyone from the legacy of slavery and racial discrimination. All it does is feed the American aversion to history and reflection. Which is a shame. If there’s anything great about this country, it’s in our ability to account for and overcome our mistakes. Peddling whitewashed ignorance diminishes America as much as it does our intellect.

(emphasis mine)

With the obstruction of a very united minority, there has been a great deal of debate about the filibuster and the reform of Senate Rule 22. In a New York Times op-ed, Former Vice President Walter F. Mondale, recalls how in 1975 when he was a Senator, the Senate voted to reduce the number of votes required to end filibuster from 67 votes, a super majority, to the current 60 votes. Clearly, he states this was not enough. Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress.

Mr. Mondale argues that essentially, these rules abrogate the Constitution which only requires a 67 vote majority for the approval of treaties, “in all other instances it must be assumed that the Constitution requires only a majority vote”. In other words, many of the Senate rules are unconstitutional and could be done away with on a simple majority procedural vote under Parliamentary rules. That was the “nuclear option” that was used as a threat by the Republicans to force the Democrats to capitulate when they were n the minority.

The Constitution is clear that under Article I, Section 5 of the Constitution: “Each House may determine the rules of its proceedings.” However, it is very explicit about the few instances where a super majority vote is needed, it must be assumed that the Constitution requires only a majority vote in all other cases.

Congressional expert and Washington University in St. Louis political science professor Steven S. Smith, has testified before U.S. Senate Committee on Rules and Administration that there is an unhealthy exploiting of the Senate rules to block important legislation and limit debate. Prof. Smith also stated that

“wishing for better behavior” on the part of senators and their leaders won’t reverse the consequences of “two decades of intensifying parliamentary warfare” that has contributed to the demise of the appropriations process, more packaging in omnibus bills, and a shift of policy decision-making from committees to party leadership offices, among other changes

He proposed that these changes be made:

   (M)ore clearly protect each senator’s opportunity to debate and offer amendments;

   (L)imit debate on motions to proceed and combine and limit debate on the three motions to go to conference;

   (L)imit debate on appropriations bills and executive calendar business; and

   (W)here debate is not otherwise limited, allow a simple majority to eventually close debate.

On of the rules being considered is forcing the filibustering Senator to actually stay on the floor speaking for the duration of the filibuster, a la, Sen. Bernie Sanders’ recent 8 and a half hour tour de force on the Senate floor. There is also a need to end the policy of “secret holds” which prevents a bill or nomination from being considered even though it has cleared committee. The Democrats need to stand firm on rules reform, otherwise, we are in for an even more obstructive Senate in the 112th Congress.

This is no laughing matter. The Obama Justice Department is defending the worst Attorney General, John Ashcroft, from being sued by an American citizen whose Constitutional rights were clearly violated by AG Ashcroft’s stated policy to use the material witness law to prevent terror attacks by rounding up Muslim immigrants.

Last night on Countdown with Keith Olbermannn, Constitutional Law Professor, Jonathan Turley discussed the Prosecuting of John Ashcroft and the ramifications of a possible decision favoring the Obama administration’s support of abuse of the law by Ashcroft.

Jonathan Turley:

The amazing thing about this case is that there is an old expression of bad cases making bad law. This is a case of a bad guy making a bad law. They’re going to have to pitch this to the heart of the court to support one of the most abusive Attorney Generals in history. What will be left is truly frightening.

This is a case, as you have mentioned, where false statements were given to a Federal court to secure a warrant, a person was held without access to a lawyer, was held in highly abusive conditions and you have an Attorney General who was virtually gleeful during that period about his ability to round up people. This was at a time when material witness rationale was being used widely and rather transparently to simply hold people.

Smith, the judge, wrote a really incredible opinion, one of the better opinions I’ve read in the last ten years and he basically noted st the end, this is what the Framers fought against. And he right, we have become what the Framers fought against. What it is we defined ourselves against, this is what the Framers were talking about, arbitrary detention.

And my God, you have the Obama Administration arguing that you cannot hold an Attorney General liable for such an egregious and horrible act.

President Obama, aka Bush, is making sure that telecommunications companies are ensuring that their networks can be wiretapped. Change? LMAO

U.S. Pushes to Ease Technical Obstacles to Wiretapping

WASHINGTON – Law enforcement and counterterrorism officials, citing lapses in compliance with surveillance orders, are pushing to overhaul a federal law that requires phone and broadband carriers to ensure that their networks can be wiretapped, federal officials say

The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that create technical obstacles to surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.

An Obama administration task force that includes officials from the Justice and Commerce Departments, the F.B.I. and other agencies recently began working on draft legislation to strengthen and expand a 1994 law requiring carriers to make sure their systems can be wiretapped. There is not yet agreement over the details, according to officials familiar with the deliberations, but they said the administration intends to submit a package to Congress next year.

Never mind “1984”, we may as well be living in the USSR.

Here is the argument for President Obama to appointment Peter Diamond, the Economics Nobel laureate, the Board of Directors of the Federal Reserve and make other appointments that have been blocked by the obstructionist Republicans and some blue Dog Democrats. Dr. Diamond’s confirmation has been blocked by Republicans, chief among them, Sen. Richard Shelby who had the audacity to call him “not qualified”.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing for the The National Law Journal makes the argument that the pro forma sessions every three days during recess are little more “than a game of separation-of-powers chicken”. There is nothing in the Constitution and Appellate courts have ruled that “there is no minimum recess time required for a valid recess appointment”.

But there is no minimum recess required under any law. The three-day minimum recess is fiction – as fake as are the Senate faux sessions. Better to begin with nonfiction – the Constitution.

In 2004, the U.S. Court of Appeals for the 11th Circuit ruled: “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” In Evans v. Stephens, the 11th Circuit, following prior 9th and 2d circuit rulings, broadly affirmed the executive’s unilateral recess commissioning authority during short intersession and intrasession breaks.

Even the Senate’s own Congressional Research Service reports: “The Constitu­tion does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.” . . .

The president’s constitutional appointment authority cannot be trumped, or even limited, by Senate scheduling shenanigans. In fact and law, the 111th Senate is now dispersed to the four corners for six campaign weeks. Gaveling open, and then gaveling closed, a half-minute meeting of an empty chamber is not a legitimate break in the recess. A Senate quorum could not be gathered; neither legislative nor executive business could be conducted. Constitutional law demands substance over form.

The faux sessions only further expose the broken institution and its failed, dysfunctional confirmation processes.

At bottom, recess appointments are a matter of presidential will. In 1903, Theodore Roosevelt set the standard when he recess-appointed 160 officials during a recess of less than one day.

Mr. Williams points out that George W Bush’s failure to call this should not be Barack Obama’s.

Perhaps it is George W. Bush’s fault that the media erroneously reported that Obama’s recess appointment authority is lost. When majority leader Harry Reid first used the pro forma tactic against Bush over Thanksgiving, 2007, the 43rd president failed to push back.

Bush did not recess appoint for the remainder of his term despite calls for him to call Harry Reid’s bluff. A commissioning of even one noncontroversial nominee to a low level position would have asserted the executive’s prerogative. His failure to do so may be mistakenly interpreted as setting a precedent. It does not.

As I have noted on this site, Harry Reid appears to have gotten the better of George Bush; bluffing is a basic gambling skill for separation of powers and Texas Hold ’em.

Mr. President, you are a Constitutional Lawyer, starting the day after the elections, November 3, “buck up” and call the bluff.

You know that you have gone too far with the wing nuttery when both Lou Dobbs and Alan Keyes think you have jumped the shark.

Lou Dobbs, for as anti-immigrant as he is, says that the 14th Amendment is not the problem

I part ways with the Senators on that because I believe the 14th amendment, particularly in its due process and equal protection clauses, is so important. It lays the foundation for the entire Bill of Rights being applied to the states.

The Republican Racists now want to repeal the 14th Amendment to the Constitution that grants citizenship to those born on U.S. soil Why? Because they come here to “drop babies”. Senate Majority Leader Mitch McConnell wants to hold hearings so the “experts” can be heard. “Experts”? He means racists. The Democrats might not be the best choice for voters but the Republicans have more than jumped the shark, they are swimming with them.

And then there is Keith and listen carefully to Jonathan Turley.

When Barack Obama gave the OK to assassinate an American citizen, Imam Anwar al-Awlaki, who was deemed a terrorist without due process, his father, Nasser al-Awlaki, retained the ACLU and the Center for Constitutional Rights to to seek a federal court order restraining the Obama administration from killing his son without due process of law. But guess what, the Treasury Department has a regulation that prohibits any American from “engaging in transactions” with individuals labeled by the Government as a “Specially Designated Global Terrorist”, including lawyers. The lawyer would have to seek a special “license” to represent such a client.

Up Date: Rep. Dennis Kucinich has announced that he will introduce a bill in the House to prevent anyone, including the President, from targeting American citizens for assassination.

The bill states that “No one, including the President, may instruct a person acting within the scope of employment with the United States Government or an agent acting on behalf of the United States Government to engage in, or conspire to engage in, the extrajudicial killing of a United States citizen.” It adds: “the authority granted to the President in the Authorization for Use of Military Force… following the terrorist attacks of September 11, 2001, is not limitless.”

The bill would require the president to submit to the Intelligence Committees a report “on the identity of each United States citizen that is on the list of the Joint Special Operations Command or the Central Intelligence Agency as `high value individuals’ or `high value targets’.”

h/t to Jeremy Scahill at The Nation for his excellent article