Law and Justice

This is a court of law, young man, not a court of justice.  — attributed to Supreme Court Justice Oliver Wendell Holmes Jr.

In this week’s Sift, we’re waiting for a ruling in the Citizens United case, where the Supreme Court is expected to destroy nearly all existing limitations on corporate political spending. But courts have been busy the last few months as well, and I haven’t been keeping up. Here are some of the cases worth paying attention to:
  • Blackwater Case Thrown Out. There seems to be no legal way to prosecute the mercenaries who killed at least 14 innocent civilians in Baghdad’s Nisour Square. 
  • Guantanamo Detainees Lose a Double-header. A civil suit alleging that four British detainees were illegally tortured at Guantanamo is officially dead now that the Supreme Court refuses to hear the appeal — meaning that there is still no definitive court ruling that torture is illegal even if the president orders it. And a Yemeni man’s habeas corpus petition was turned down by an appeals court, which made a sweeping ruling that the international laws of war are inapplicable.
  • Part of the Defense of Marriage Act is unconstitutional. In nearly identical cases, conservative and liberal federal judges in California rule that same-sex spouses have to get spousal benefits from the federal government. 
And, as usual, we have Short Notes: The fate of the health-care bill depends on who votes in the Massachusetts special senate election. Texas conservatives’ control of national textbooks is about to get worse. I’m closer to Dick Cheney than I thought. How do you have a democracy if only the well-to-do have journalism? Brit Hume won’t back down. The health-care system works very well for insurance CEOs. Rudi forgets 9-11. Viral videos about snow. And more.
Blackwater Case Thrown Out
As you know if you read Big Boy Rules: America’s Mercenaries Fighting in Iraq by Steve Fainaru (or my review of it) trigger-happy security contractors in Iraq have been a major problem. The contractors fell through the cracks between the various legal systems, not being accountable either to Iraqi law or to the Uniform Code of Military Justice.
The most egregious incident (which gets a whole chapter in Big Boy Rules) was the Nisour Square shooting in Baghdad in 2007 that left 17 Iraqi civilians dead and 24 injured, without any evidence of what the heck the Blackwater guards were shooting at. (The judge’s statement dismissing the charges refers to Nisur Square, 14 dead, and 20 injured. I’m not sure where the discrepancies come from.) The mercs claimed that they were responding to enemy fire, but even in that story there’s no good explanation of why they returned fire in all directions, killing so many unarmed civilians.
Charges of manslaughter and firearms violations were brought against five Blackwater employees in American civilian court in May, 2009. Those charges got thrown out on New Year’s Eve by District Judge Ricardo Urbina. The reason: When the Department of State (who contracted Blackwater for their services) investigated, it took statements from the guards under the threat of losing their jobs and with the promise that these statements would not be used in court. So the statements are inadmissible in U.S. court. Blame the Fifth Amendment:

No person … shall be compelled in any criminal case to be a witness against himself.

More than that, the Fifth Amendment has been interpreted to mean that compelled self-incrimination can’t be used in the investigation leading to the indictment. For example, if an inadmissible statement is your only reason to believe that Bob shot Jack, and you then go to all the witnesses and ask, “Did you see Bob shoot Jack?” — then the statement has contaminated your investigation. The government has to go to some trouble to show that this didn’t happen, sometimes by appointing a whole new investigating team that hasn’t seen the inadmissible statements.
In this case the judge ruled that the government’s case was too contaminated to come to trial. The judge’s logic looks correct to me, even though it leads to a result I don’t like. (It’s similar to when Oliver North’s felony conviction got thrown out in the Iran-Contra scandal.) Conservatives may not like the fact that our system gives rights to defendants who are probably guilty, but their people deserve those same rights.
The Iraqis are furious. The situation is complicated by the fact that Iraq has no history of an independent judiciary or constitutional rights, so Iraqis quickly jump to the conclusion that the whole process must have been a sham from the beginning. The L.A. Times quotes one victim, an Iraqi lawyer, as saying, “This negates Iraqi blood and life. … If an Iraqi cut off the finger of an American, they would not be satisfied until they got half the riches of Iraq.” Another wounded man said, “This is typical of American justice.”
I’m not sure how much blame to apportion between the Obama and Bush Justice Departments. The lead investigator on the case was Assistant U. S. Attorney Kenneth Kohl. A CNN article about the case mentions him in December, 2008, too early to make him an Obama appointee. Nonetheless, the Obama Justice Department has had oversight since January, 2009.

Victims of the Nisour Square shooting now say they were pressured into accepting small settlements from Blackwater (now officially called Xe, a name no one seems to use). They claim that Blackwater either duped or corrupted their attorneys, who urged them to accept the settlements on the grounds that Blackwater was about to go bankrupt and they could wind up getting nothing.

Victims who didn’t accept the settlements had a civil suit in North Carolina, which Blackwater has also settled.

Guantanamo Detainees Lose a Double-header
Four British Guantanamo detainees had filed suit against Don Rumsfeld and 10 military commanders, asking compensation for having been tortured illegally. An appeals court dismissed the suit in April, and the Supreme Court refused to hear the appeal in December. The key statement in the appellate decision, which is the standing opinion now that the Supremes have decided not to take the case, is:

even if plaintiffs had rights under the Due Process Clause and the Cruel and Unusual Punishment Clause and even if those rights had been violated, qualified immunity shields the defendants because the asserted rights were not clearly established at the time of plaintiffs’ detention.

In other words, it’s still ambiguous whether or not torture at Guantanamo was illegal during the Bush administration. A NYT editorial objects:

Contrary to the view of the lower appellate court, it was crystal clear that torture inflicted anywhere is illegal long before the Supreme Court’s 2008 ruling that prisoners at Guantánamo, de facto United States territory, have a constitutional right to habeas corpus. Moreover, the shield of qualified immunity was not raised in good faith. Officials decided to hold detainees offshore at Guantánamo precisely to try to avoid claims from victims for conduct the officials knew was illegal.

Tapped quotes and paraphrases the ACLU’s Ben Wizner :

“not a single torture victim has had his day in court, not a single court in a torture case has ruled on the legality of the Bush administration’s torture policies,” Wizner said. As a result, Wizner explained, “we don’t have a binding definitive determination from any court that what went on for the past eight years is illegal,” without which it would be all too easy for another lawyer in another administration to write a memo allowing “monstrous conduct.”

The history of the case goes back to 2004, when the suit was originally filed.
Back in 2001 — before 9-11 and before the United States had any quarrel with the Taliban or Afghanistan — a Saudi cleric convinced Ghaleb Nassar Al Bihani, a Yemeni, that it was his duty to defend the Taliban in the Afghan civil war it was fighting with the Northern Alliance. So he went to Afghanistan and joined a rag-tag pro-Taliban military outfit as a cook. After 9-11 and the entry of the United States, the fortunes of war changed and Al Bihani’s unit surrendered to the Northern Alliance. Al Bihani wound up in Guantanamo, where he has spent the last eight years.
In the Boumediene case of 2008, the Supreme Court ruled that Guantanamo detainees had habeas corpus rights — in other words, the right to force the government to justify a detainee’s imprisonment in front of a judge who could order release if s/he isn’t satisfied with the government’s argument. So Al Bihani filed a habeas petition, which the district court denied. He appealed.
Now an appeals court has also ruled against Al Bihani. Judge Janice Rogers Brown, writing for the court:

Before considering [Bihani’s] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the [Authorization of the Use of Military Force resolution passed by Congress after 9-11] and other statutes are limited by the international laws of war. This premise is mistaken.

That needs some unpacking. The Constitution makes treaties part of the law. Article VI says:

all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

But Congress typically passes implementing legislation that defines specific processes for meeting treaty obligations. Judge Brown is saying that in the absence of such legislation, a treaty has no practical force. (Similar logic led John Yoo to conclude that the plain statements of the Convention Against Torture don’t actually prohibit the president from ordering torture.) I’ll yield to Deborah Pearlstein’s analysis on Balkinization:

It may be true that [the international law of war] ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

Jim White at FireDogLake marks the eighth anniversary of the first transfer of prisoners to Guantanamo by collecting links to images and commentary.

Still no report from the Justice Department’s Office of Professional Responsibility on the conduct of John Yoo and other Bush appointees at the Office of Legal Counsel. Attorney General Holder promised one in “days” — almost two months ago.

Part of the Defense of Marriage Act is Unconstitutional
The Defense of Marriage Act (DOMA) was one of those bad pieces of legislation that President Clinton signed so that Congress wouldn’t pass something even worse. One clause of DOMA prohibits federal benefits from going to the same-sex spouses of federal employees:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.

Brad Levenson is a deputy public defender in the federal court system. He was married to another man in 2006, when same-sex marriage was legal in California. (By a ruling of the California Supreme Court, those marriages remain valid even though Proposition 8 forbids any new same-sex marriages in California.) He applied for health insurance for his spouse, and was turned down because of DOMA. On November 18, Judge Steven Reinhardt of the 9th Circuit Court of Appeals (which is located in San Francisco and is considered the most liberal federal appeals court) ruled that

the application of DOMA to FEBHA [the Federal Employees Health Benefit Act] so as to deny Levenson’s request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment.

For those of you who don’t have your rights memorized, here is that clause:

No person shall … be deprived of life, liberty, or property without due process of law.

The next day, Judge Alex Kozinski of the same appeals court issued a similar order in the similar case of Karen Golinski. Emptywheel observes that Kozinski and Reinhardt could not be more different:

Stephen Reinhardt is a proud old school hard liberal appointed by Jimmy Carter; Kozinski was a young and fairly radical conservative when appointed by Ronald Reagan and openly complained that the 9th was too wild eyed liberal when he joined.

So far, the Obama administration is dragging its feet about responding to these rulings, invoking a technicality whose importance I can’t judge: Because these cases involve employees of the federal court system, the federal judges are acting in an administrative capacity rather than a judicial capacity. (In other words, these are grievance procedures internal to the court system, not lawsuits.) So their rulings in these cases do not carry the same legal force as federal court rulings.
I’m not sure where this goes from here. Probably Levenson and Golinski will have to file suit in federal court, in which case the judges (the same judges? I’m not sure) will be ruling in their judicial capacity. The same logic will probably apply, and then the whole thing could get appealed to the Supreme Court.

Other summaries of the Levenson and Golinski DOMA cases are here and here.

I’m taking a charitable view of the Obama administration’s actions here. The Obama administration is defending the status quo in court rather than changing it by executive interpretation. This forces Congress and the courts to do their jobs, rather than following the imperial-presidency pattern of recent administrations of both parties. I think Obama would be happy to see Congress repeal DOMA or the Supreme Court declare it unconstitutional, but in the meantime his administration is not going to stop enforcing it.

DOMA was passed in 1996, seven years before the first legal same-sex marriages were performed in Massachusetts. It was a response to a 1993 ruling by the Hawaii Supreme Court that for a time made Hawaii the most likely state to legalize same-sex marriage — a possibility nixed by a 1998 amendment to the state constitution.

Something neither judge has touched so far is the full-faith-and-credit angle, which DOMA was directly targeting. Article IV Section 1 of the U.S. Constitution says:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

So if one state says you’re married, how can some other state say that you’re not? And how can an ordinary law like DOMA undo a provision of the Constitution, which is the supreme law of the land? For an example of how this logic works, see the Finstuen v. Crutcher, where a federal court ruled in 2007 that Oklahoma had to recognize a same-sex couple as the legal parents of a child they had adopted in another state.

DParker at DailyKos has a nice summary of a lot of pending cases, This week in the Supreme Court. I hope he starts doing this every week that the Court is in session.

Short Notes
Massachusetts folks, listen up: You absolutely have to vote in the January 19 election to replace Ted Kennedy. The polls are all over the map, with some even putting Republican Scott Brown ahead. The difference in the polls seems to be the different pollsters’ assumptions about who votes.
If Brown wins, that’s it for the filibuster-proof Senate. Then not even Joe Lieberman will be able to save health-care reform.
The outsized influence of Texas on public school textbooks, and the outsized influence of right-wingers in Texas — those are both old stories. But it looks like things are about to get worse. And when it comes to the anti-evolution movement: Today America, tomorrow the world.

Democratic Senators Brian Dorgan of North Dakota and Chris Dodd of Connecticut have announced that they won’t run for re-election. The two announcements have opposite effects: North Dakota is a red state, but Dorgan had a good chance of holding the seat for the Democrats. Connecticut is a blue state, but Dodd had become unpopular enough that he could have lost the seat to a Republican.

A seminal talk that I’ve linked to before is Tom Stites’ “Is Media Performance Democracy’s Critical Issue?” Tom’s point is that all the real reporting in the mainstream media assumes an audience in the richest 40% of the population. The lower 60% live their lives more-or-less untouched by journalism.
This is old news now — the talk is from 2006 — but it came back to me while I was preparing this week’s Sift. I wanted to write about the disappointing jobs report, so I did a Google News search for stories on “jobs report” during January 7-9. What came up? The top story was CNN’s “Stocks expected to fall on jobs report“. (The expectation was wrong; the market went up Friday.) The second featured link was about how the jobs report had affected the oil market. And it went on like that.
Think about that. The economy losing 85,000 jobs is a life-changing disaster for lots and lots of working-class people. But the story the media considers worth covering is the effect that the jobs report might (but actually didn’t) have on investors. 
If you want to go deeper on this topic, check out Tom’s Banyan Project. (Full disclosure: Before he “retired”, Tom was my editor at UU World. I’m an unpaid advisor to the Banyan Project.)
Glenn Greenwald points out that Politico’s self-defense misses the point:

Nobody I’ve heard objects to Politico’s act of telling its readers about the “interesting things” Cheney has to say. The objection is that Politico mindlessly reprints any and all claims Cheney wants to make, no matter how factually dubious or even blatantly false, without question or challenge. 

Speaking of Cheney brings me to today’s unexpected discovery: Jacob Plotkin, my logic professor at Michigan State, was Dick Cheney’s freshman roommate at Yale.

Amusing Informania videos if you’re sick of winter already: This one commiserates with reporters who have to cover snowstorms — and includes some snow reports that didn’t go exactly as planned. And Viral Video Film School collects strange snow-related clips.

DailyKos’ Devilstower calls attention to the hoo-hum attitude everybody seems to have toward the horrible stuff that happens in Appalachia. Cut the tops off mountains, destroy the forests, pollute the streams, bulldoze the historical sites — it’s not like anybody important lives there.

A follow-up to last week’s note where Brit Hume made an on-air appeal for Tiger Woods to convert to Christianity. This week Hume defended himself on Bill O’Reilly’s show. Apparently, it’s not “proselytizing” when a Christian tries to get somebody from another religion to convert. And the only reason anybody objects to Hume using his status as a news anchor to promote his religion is that they have a bias against Christianity. “You mention the name of Jesus Christ,” Hume tells O’Reilly, “and all Hell breaks loose.”

Christians often go off on nonsensical persecution jags like this. Their points are hard to answer because there are no truly analogous cases – because nobody who didn’t belong to the majority religion would even consider doing such a thing. 
Picture it: Lots of celebrities who get in trouble are at least nominally members of some Christian sect. Lindsay Lohan, for example, is listed as Catholic. Assuming that there’s a Buddhist or Hindu or Muslim news anchor somewhere, would that anchor dare suggest that Lindsay’s problem is Christianity, and that the solution is for her to convert to the anchor’s faith? How long would the anchor keep his job?
Here’s yet another graphic showing what a bad deal Americans get from our health-care system. And here’s another one.
On the other hand, our health-care system works well for some people: CIGNA CEO Edward Hanway, for example, is getting a $73 million retirement bonus. Well done, Ed.
Former NYC Mayor Ed Koch generously grants that not all Muslims are terrorists. “But there are hundreds of millions who are.”

You would have thought that Rudi Giuliani would be the last person to forget 9-11. But not so. Here he says: “We had no domestic attacks under Bush; we’ve had one under Obama.” Later clarification indicated that Rudi meant since 9-11. Bush gets a mulligan for that one because … well, he just does. Tristero notes a few other things Rudi has forgotten, and DailyKos’ clammyc adds: “Other than New Orleans, no US cities were destroyed under Bush.”

By weeklysift, on January 11, 2010 at 2:57 pm, under Uncategorized. No Comments
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