Author Archives

Stuart Taylor, Jr.

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Opening Argument – Dumb and Dumber

by Stuart Taylor, Jr.

National Journal

Comes now Attorney General Alberto Gonzales, a man not known for legal acuity, with a threat to prosecute The New York Times and other news media for publishing leaks of classified information.

Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

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Opening Argument – In Duke Case, a Rogues’ Gallery

by Stuart Taylor, Jr.

National Journal

My rogues’ gallery does not (in all probability) include any Duke University lacrosse player. That’s because the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie. (Some evidence was in my April 29 column; some is below.)

The gallery does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties.

The gallery also includes former Princeton University President William Bowen and civil-rights lawyer Julius Chambers. They went out of their way to slime the lacrosse players in a report on the Duke administration’s handling of the rape scandal — a report that is a parody of race-obsessed political correctness.

Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser’s huge credibility problems.

Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.

Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.

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Opening Argument – More Racial Gerrymanders

by Stuart Taylor, Jr.

National Journal

When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious.

They are steamrollering through Congress bipartisan legislation to renew for the next 25 years a much-misunderstood, largely anachronistic provision (Section 5) of the Voting Rights Act, including amendments that are driven by racial-identity politics and that would aggravate ideological polarization.

The amendments would turn back the clock on racial progress by requiring even more racial gerrymandering of election districts than under current law. And the extension of Section 5, as currently drafted, would perpetuate an extraordinarily punitive oversight regime that gives to federal political appointees and not-exactly-apolitical bureaucrats at the Justice Department unreviewable power to dictate state and local election rules in nine (mostly Southern) states and some other jurisdictions.

Why would broad bipartisan majorities of House and Senate incumbents want to do that? To help themselves win re-election, for starters. More specifically, Democrats are pandering to the demands of black and Hispanic politicians for safe seats and to the ideological obsessions of the civil-rights lobby, which still sees America as so steeped in racism that whites just won’t vote for minority candidates.

Never mind that Douglas Wilder, an African-American, was elected governor of Virginia in 1989; Bill Richardson, a Hispanic, was elected governor of New Mexico in 2002; Colin Powell might well have been elected president of the United States had he run in 1996; nine of the 34 Georgia officials elected statewide are black; and so on, and so on.

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Opening Argument – An Outrageous Rush to Judgment

by Stuart Taylor, Jr.

National Journal

The trashing of Duke’s lacrosse team by many in the media may be shifting gears as the Durham, N.C., district attorney’s case against two players indicted for gang rape falls apart and evidence of gross prosecutorial misconduct mounts. I can’t rule out the possibility that there may be some horrible truth in the shifting claims by an African-American "exotic dancer" that the two indicted defendants and another team member gang-raped her in a bathroom. But accumulating evidence strongly suggests that the charge may well be a lie.

The innocence of at least one defendant seems clearly established by rock-solid evidence that he could not possibly have been raping anyone during the half hour after the accuser and another woman had done their four-minute dance at a team party at midnight on March 13. The case against the other defendant also seems weak.

And the evidence that perhaps no Duke lacrosse player committed rape should make a lot of people ashamed of themselves: District Attorney Mike Nifong, the Durham police, many in the media, politically correct Duke professors, spineless Duke administrators, and others.

(Disclosure: A parent of one team member is a friend of mine, and I might not be writing about the case if my analysis of the evidence supported the rape charge.)

Instead of backing off, many in the rush-to-judgment crowd have simply hedged their presumption of guilt and shifted to smearing the lacrosse players — including sons of three retired New York City firefighters, and others from modest backgrounds — as a bunch of privileged, thuggish, racist, and (horrors) white jocks, suggestive of Southern slaveholders.

As to the rape charge, consider some evidence.

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Opening Argument – Emergency Powers Should Be Temporary

by Stuart Taylor, Jr.

National Journal

The battle over President Bush’s warrantless eavesdropping program has faded as a political issue. But it serves to illustrate a legal principle that should be — but has not been — a point of consensus in the broader debate about presidential war powers.

The principle is that while the president should have power during an extraordinary emergency to temporarily disregard outdated laws that may impede his ability to protect American lives, that power should lapse once he has had time to seek appropriate congressional changes in the laws.

I call this the emergency-powers principle. Its logic has been overlooked by many Bush critics as well as supporters in assuming their respective positions: that the eavesdropping program either was illegal from the outset (as critics claim), or has always been legal and will always be immune to congressional regulation (as defenders claim).

The better view is that Bush was right to start the eavesdropping program (assuming that the still-secret details show the need for it) during the post-9/11 emergency — but was wrong to keep its existence secret and to resist congressional regulation.

Although various laws give the president extraordinary powers during emergencies, no general emergency-powers principle is spelled out in the Constitution or in any judicial decision that I can find. But the principle is implicit in the Framers’ division of powers between Congress and the president.

It is also compelled by common sense. In the days and weeks after the 9/11 attacks, the administration had reason to fear that more attacks might be imminent. It also had cause for concern that the Foreign Intelligence Surveillance Act — badly outdated by new communications technologies and by the vastly enhanced terrorist threat — might make it unduly difficult to find the plotters.

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Opening Argument – Missing From the Immigration Debate

by Stuart Taylor, Jr.

National Journal

Largely overlooked in the immigration debate roiling Congress and the nation are two themes that should be front and center. The first is that all efforts to control illegal immigration will be futile unless Congress requires workers to have forgery-proof, theft-proof identity cards — ideally embedded with biometric data matching the bearer’s thumbprint or iris scan — and imposes heavy penalties on employers who hire people without such cards. The second is that nobody seems to have any idea how to interest the millions of chronically unemployed Americans — especially inner-city males — in the low-paying jobs that go to illegal immigrants because Americans supposedly don’t want them.

So here’s a modest three-part plan. It would cut down the flow of illegals as efficiently and humanely as possible; use a federally funded minimum-wage increase to bring at least some unemployed Americans into the job market; and, while we’re at it, narrow the vast income gap between skilled and unskilled workers.

First, Congress should create a system of forgery-proof, theft-proof identity cards and a more robust enforcement process to put teeth in the laws against employing illegal immigrants. The influx of illegals will plunge if these workers cannot find jobs.

Experience shows that as long as there are jobs for illegal immigrants, neither a wall along the Mexican border — unless festooned with machine-gun towers and troops under orders to shoot climbers on sight — nor such punitive measures as making illegal immigration a felony will greatly slow the influx.

The 1986 immigration reform law sought to slow the flow of illegals by slapping sanctions on employers who hire them (while giving amnesty to the millions already here). But a coalition of employers eager to hire low-paid, hardworking illegals and libertarians obsessed with the specter of Big Brother killed proposals to create forgery-proof, theft-proof identity cards.

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Opening Argument – Decommission the Commissions

by Stuart Taylor, Jr.

National Journal

On March 28, the Supreme Court will hear arguments on whether the "military commissions" created by President Bush in November 2001 to prosecute suspected Qaeda terrorists are a time-honored presidential prerogative or (as I have re- luctantly come to believe) another unwise, unconstitutional Bush power-grab.

The legal issues are complex and difficult, and the outcome is hard to predict. What’s already clear beyond dispute, however, is that this supposedly speedy, streamlined system — which took nearly three years to start its first trial — has in practice been a fiasco and an international embarrassment.

Small-fry defendants. Weak evidence. Commission members apparently hand-picked for their likelihood to please their bosses.

Egregious errors by translators. And constantly changing rules, including the last-minute effort to dress up the commissions for their date with the Supreme Court by banning the previously approved use of statements obtained under torture.

The defendant whose case is now before the Court, Salim Ahmed Hamdan, hardly seems to be one of "the most dangerous, best-trained, vicious killers on the face of the earth," as Defense Secretary Donald Rumsfeld has described the Guantanamo detainees. Hamdan admits that he was Osama bin Laden’s chauffeur for several years before his capture in late 2001. But he is charged with only a single count of conspiring to murder civilians, based on allegations so nebulous that a real court might well throw the case out. The government has not even claimed that Hamdan helped plot any terrorist attacks or committed any specific criminal act. Its best evidence seems to be that he drove Qaeda members and weapons around Afghanistan.

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Opening Argument – In Praise of Judicial Modesty

by Stuart Taylor, Jr.

National Journal

During the hiatus between Supreme Court confirmation battles, we may as well settle the clash between the conservative and liberal approaches to constitutional interpretation. The battle lines are familiar. Conservatives, led by Justices Antonin Scalia and Clarence Thomas, say that the sole legitimate approach is to follow the literal text and original meaning of constitutional provisions and amendments. Justices’ policy preferences should play no role, assert conservative "originalists." But the claim is undercut somewhat by the consistency with which the conservatives’ votes on abortion, religion, race, gay rights, and many other big issues happen to fit their policy preferences.

Liberals and many moderates prefer the "living-Constitution" approach, which has been dominant at least since the Warren Court. It involves using ancient but conveniently vague constitutional phrases to enforce "evolving standards of decency," to promote equality, and to vindicate what sometimes-liberal Justice Anthony Kennedy likes to call "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Not surprisingly, constitutional evolution in the hands of liberals supports liberal policies.

Each school of thought is most persuasive in debunking the other. Justice Stephen Breyer skewers originalism in his 2005 book, Active Liberty: "Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?"

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Opening Argument – The Trouble With Texas

by Stuart Taylor, Jr.

National Journal

A dispiriting reality sank in as the Supreme Court worked through two hours of arguments on March 1 about the egregious gerrymander that Tom DeLay helped ram through the Texas Legislature in 2003: The Court has no intention of fixing — and no idea how to fix — the mess that it has made of our politics (with ample help from politicians) over more than four decades. And nobody else seems to have a good idea, either.

This mess is not just in Texas. Nor will it be ameliorated by whatever the Court does in the Texas case. Not even in the highly unlikely event of a decision to strike down the congressional redistricting map that knocked off five Democratic incumbents in 2004, while delivering 21 of Texas’s 32 House seats to Republicans, up from 15 in 2002.

The mess to which I refer is state legislatures’ use of gerrymandering — manipulating election district lines to help or hurt a particular candidate or group — to make 80 to 90 percent of the nation’s 435 House districts so lopsidedly Republican or Democratic that the out party has almost no chance of winning.

The paucity of competitive general elections for House seats, bad enough in itself, has also helped polarize our politics into the bitter liberal-conservative brawling that litters the landscape today. Primaries, dominated by the most fervently partisan voters, are the only real contests. So victory goes to the most liberal of Democrats and the most conservative of Republicans. Moderates, who used to grease the wheels of conciliation and compromise, have almost disappeared.

The polarization that has poisoned the House has also infected the Senate to a lesser extent. Senators run statewide. But many climbed the ladder by being liberal or conservative enough to win in gerrymandered House or state legislative districts.

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Opening Argument – Leak Prosecutions: The Gathering Storm

by Stuart Taylor, Jr.

National Journal

The news media’s ability to use leaks to keep the White House honest is threatened as never before by the unanticipated consequences of the investigation into the White House’s own leaks of classified information to discredit a critic.

Some government officials are itching to exploit that investigation as a precedent for using the threat of long jail terms and massive fines to force reporters to finger their confidential sources. The precedent was set, ironically, by the special counsel investigating leaks by White House officials, including (we now know) Karl Rove and I. Lewis (Scooter) Libby.

Few leakers and no reporters in American history have been prosecuted for disclosing classified information. But that may change.

Under the Justice Department’s interpretation of a 1917 espionage law, both those who leak government secrets and those who publish them are felons. It may be no defense to argue that the leaks did little damage to national security, or that they exposed official misconduct or deception.

Subpoenas of journalists have not been so common in more than 30 years. Former Pentagon official Lawrence Franklin was sentenced to 12 years in prison last month for orally sharing classified information to help two then-staffers of a pro-Israel group lobby for a harder line on Iran. Those two men face trial in April for receiving classified information and sharing it with reporters and Israeli officials. They are the first private citizens ever prosecuted for such activities. Reporters could be next. Meanwhile, Senate Intelligence Committee Chairman Pat Roberts said on February 17 that he may push for new legislation making it easier to prosecute leakers.

Unless wise heads in the Justice Department, the judiciary, Congress, and the media themselves steer a steady course through this gathering storm, the executive branch will acquire more power than ever to hide its actions from public and congressional scrutiny.