Have you heard that Attorney General Eric Holder has appointed tough federal prosecutor Patrick Fitzgerald to take over a months-old investigation into whether defense lawyers associated with the American Civil Liberties Union illegally compromised CIA interrogators’ identities?
The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.
The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee’s Guantanamo Bay cell.
The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame’s identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.
The use of CIA operatives’ photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics — which tend to support what the lawyers reportedly did — may not be the best way to deal with mass-murder terrorists who wage war against the United States.
Editor’s Note: This is an updated version of Stuart Taylor’s Dec. 12 Opening Argument column.
What chances of success await the lawsuits challenging the constitutionality of the new health insurance reform law filed by 14 state attorneys general this week, with more lawsuits by states, individuals, and companies in the pipeline?
Not much, according to most of the academic experts who have weighed in. They confidently predict that the Supreme Court will (if the case gets that far) uphold the new law’s major provisions. These include the much-debated mandate for individuals to buy comprehensive health insurance unless they’re already covered by employer-based plans, and also the requirement that states spend billions of dollars expanding their Medicaid programs (unless they withdraw) and administering the complex new law.
These experts cite the justices’ very broad reading since the New Deal of Congress’ powers to regulate interstate commerce and to tax and spend.
The need to govern an ever more interconnected nation has spawned a long line of precedents expanding the commerce power.
I, too, would bet on the major provisions of the 2,400-page law being upheld. But "these challenges are not frivolous," as the Washington Post said in an editorial, and "the case is not as clear-cut as many legal scholars have argued."
The fact is that the costly federal mandates that the law imposes on state governments, individuals and families are without close precedents. And the lopsided academic response is attributable partly, though not entirely, to the lopsidedly liberal policy preferences of the professoriate.
Indeed, most scholars and other analysts have virtually ignored the new law’s most vulnerable (in my opinion) major provision, which the plaintiff states say violates their sovereignty.
Corrected at 3:00 p.m. on March 12.
For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.
Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.
Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.
The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.
The news from the March 2 oral argument in the Supreme Court’s biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. — probably in June.
But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.
Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.
The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.
Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.
Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.
Is waterboarding torture? Of course it is, say Attorney General Eric Holder and many others who have confidently declared that the Bush administration’s lawyers were clearly wrong to approve as legal the CIA’s proposed use of waterboarding and nine other brutal interrogation methods.
I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.
But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.
Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.
And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.
You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.
The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protÃ©gÃ©s in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)
Suppose that your child is being held in a secret location by kidnappers who threaten to kill her within two hours unless they’re paid a ransom of $100,000 that you can’t raise. Suppose further that the FBI has just captured one of the kidnappers.
Would you want the agents to say this? "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."
And would you want them to stop asking questions the second the suspect asks for a lawyer?
Neither the Fifth Amendment nor Miranda forbids aggressive interrogation to protect public safety.
Now imagine a more realistic scenario, along the lines of Al Qaeda’s aborted 1995 "Bojinka" plot: After learning that Qaeda terrorists with virtually undetectable bombs are planning to blow up 12 airliners carrying almost 4,000 passengers very soon, the FBI captures one of them. Would you want him Mirandized?
The questions answer themselves.
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.
I have instructed my subordinates that suspected Al Qaeda terrorists captured anywhere in the world should be interrogated extensively — with safeguards against abuse — before any Miranda warnings or access to lawyers. This approach is legal and it may save lives. Although the specific evidence obtained might in some cases be inadmissible in court, the suspects will be prosecuted based on other evidence once interrogation is completed.
This is a major departure from the established policy of all past administrations, of the FBI, and until now of my administration. Nobody should fault those who diligently followed established policy in handling the suspect in the Christmas Day airplane bombing attempt. But I have decided that my new policy is more likely to obtain critical intelligence from captured terrorists.
President Obama should say something like this, something fairly dramatic, to counter the surging Republican campaign to brand him soft on terrorism.
He already faces a bipartisan push to block civilian trials of Khalid Shaikh Mohammed and other 9/11 conspirators and to kill his plan to close the Guantanamo Bay prison camp. Whether he wins or loses those battles, he risks permanent political damage unless he dispels the soft-on-terrorism charge.
The charge is unfair. But it is gaining traction because of two glaring mistakes.
One was the decision by Attorney General Eric Holder’s Justice Department to advise Umar Farouk Abdulmutallab after only 50 minutes of interrogation that he had a right to stop talking — which he did. This blunder was compounded by Homeland Security Secretary Janet Napolitano’s fantasy that "the system worked," by Obama’s fatuous assertion that Abdulmutallab was "an isolated extremist," and by Holder’s unconvincing defense of the initial mistake in a five-page letter to Senate Republican Leader Mitch McConnell on February 3.
One virtue of the Supreme Court’s lamentable January 21 decision striking down all restrictions on corporate (and, by implication, union) independent spending in federal election campaigns is that Congress might be able to fix the biggest problem that the five conservative justices created.
Contrary to many a liberal critique, that problem is not that additional corporate and union cash will pour into campaigns and send the political corruption quotient soaring. It is that few stockholders (or union members) have consented to such corporate or union spending of their money.
And the most logical, politically viable, and constitutionally defensible solution would be a law requiring such consent.
The justices would likely — and justifiably — strike down any congressional response designed simply to keep as much corporate cash out of politics as possible, such as banning campaign spending by federal contractors. The Court has held for more than 30 years that independent spending on campaigns is protected speech that cannot be restricted either in the name of minimizing corruption or to limit the political clout of rich people. That’s why Citizens United v. Federal Election Commission was correct as applied to nonprofit ideological corporations whose very purpose is to advance political causes and candidates.
A for-profit corporation is different. Investing in its stock in no way signals consent for the company to spend that money attacking political candidates whom many of its stockholders support, or endorsing candidates whom many oppose.
For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution’s language and established meaning. On Thursday, the five more conservative justices — and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they’ve said before — forfeited whatever high ground they once held in the judicial activism debate.
I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.
The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.
And while the Court’s green light for "independent expenditures" of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.
Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on elections.
As one who has preached for years that presidents and Supreme Court justices should show more deference to Congress, I must admit that Congress seems less and less worthy of it. Might presidential and judicial despotism — if enlightened — be the lesser of evils?
Last week, for example, I criticized President Obama for failing to seek detailed legislation on detention and interrogation of terrorism suspects. This brought a reminder from an administration official that any effort to get a responsible detention bill past congressional Republicans — who seem far more eager to demagogue the president’s plan to close Guantanamo than to grapple with the hard issues — would probably be doomed.
A fair point. I still think that Obama should give it a try. But I would not bet on a constructive Republican response.
Harry Reid’s "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.
And when Obama is faulted for letting Democratic potentates on the Hill festoon the stimulus and health care bills with special-interest favors, I wonder: Could he have forced the potentates to be responsible had he tried?
On another front, I have faulted the Supreme Court’s conservatives for seeking to stretch First Amendment law to the breaking point to gut campaign spending laws. But those laws are so pockmarked with congressional efforts to stifle critics and other incumbent-protection games as to command little respect.
Anyone who has seen a few congressional hearings and a few Supreme Court arguments has to notice that the more democratic branch often seems a sorry circus by comparison with the analytical rigor and intellectual seriousness of the unelected justices, liberal and conservative alike.