Category Archives: Newsweek

Stuart Taylor, Jr.’s Newsweek media appearances.

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Center Court

by Evan Thomas and Stuart Taylor, Jr.

Newsweek

Justice Sandra Day O’Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awar

Justice Sandra Day O’Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awards, she had something like Phoenix Ad Woman of the Year." No matter. President Reagan wanted to appoint the first woman justice, so he named O’Connor.

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The Death-Penalty Maze

by Stuart Taylor, Jr.

Newsweek

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait while they sorted through the tricky issues of where to try the high-profile case first. Gansler was "jumping the gun," one official said.

Montgomery County and the Feds aren’t the only ones staking a claim: prosecutors in Virginia counties and Alabama also want a crack at the case. The turf wars are mo…

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait

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But Did They Break The Law?

by Stuart Taylor, Jr.

Newsweek

Yes, some of them have told the FBI that they were there. But at least one says he went only to see what the camp was about–and tried to leave as fast as he could. So how much of a case do prosecutors really have against the six Buffalo-area men arrested for allegedly receiving training at an Al Qaeda camp in Afghanistan?The biggest legal hurdle facing the authorities–who believe that the young men were part of a Qaeda sleeper cell in Lackawanna, N.Y.–is a two-year-old ruling that a critica

Yes, some of them have told the FBI that they were there. But at least one says he went only to see what the camp was about–and tried to leave as fast as he could. So how much of a case do prosecutors really have against the six Buffalo-area men arrested for allegedly receiving training at an Al Qaeda camp in Afghanistan?

The biggest legal hurdle facing the authorities–who believe that the young men were part of a Qaeda sleeper cell in Lackawanna, N.Y.–is a two-year-old ruling that a critical part of the 1996 antiterrorism law under which they have been charged is unconstitutionally vague. That was the view of a federal appeals court in an unrelated California case.

Another likely defense: a freedom-of-association claim echoing those raised by communist defendants back in the 1950s. The issue then was whether people could be prosecuted for being members of–or associating with–the U.S. Communist Party without proof of specific intent to further its illegal goal of violent revolution. The issue now is whether people can be prosecuted for providing "material support" to a foreign terrorist group without proof of specific intent to further its illegal terrorist activities.

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Holding Courts In Contempt

by Stuart Taylor, Jr.

Newsweek

The federal court decision declaring the "under God" phrase in the Pledge of Allegiance unconstitutional caused an uproar. But it may also provide a window into a larger contempt for the judiciary that seems to be taking hold in George W. Bush’s Washington. The stormy legal battle after the 2000 presidential election, and the ever-nastier fights over nominations to the federal bench, risk eroding the courts’ standing among Democrats and Republicans alike. Discontent with the courts is particul

The federal court decision declaring the "under God" phrase in the Pledge of Allegiance unconstitutional caused an uproar. But it may also provide a window into a larger contempt for the judiciary that seems to be taking hold in George W. Bush’s Washington. The stormy legal battle after the 2000 presidential election, and the ever-nastier fights over nominations to the federal bench, risk eroding the courts’ standing among Democrats and Republicans alike. Discontent with the courts is particularly strong in the current White House, which views the judiciary with more disdain than any in recent history. Bush has made no secret of his desire to curb judicial power, and especially the courts’ role in reviewing his conduct in the war on terrorism.

The pledge case itself may turn out to be a minor distraction. California’s Ninth Circuit, one of the nation’s most liberal courts, is also one of the most overturned–and its pledge decision is almost certain to be reversed down the road. But lost in the tumult over the ruling was a simple fact that helps to illuminate the larger dissatisfaction with the courts: as much as the ruling overreached, the California court was clearly taking its cues from a higher authority–the U. S. Supreme Court.

The California judges’ condemnation of the words "under God" …

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Periscope

by Stuart Taylor, Jr. et al.

Newsweek

In investigating the Sept. 11 attack, few tasks are more difficult–and potentially more ominous–than unraveling the role of a mysterious Iraqi official named Ahmed Khalil Ibrahim Samir al-Ani. Until last spring, al-Ani was listed as the chief of consular affairs in the Iraqi Embassy in Prague. But last month U.S. officials were told by Czech intelligence that al-Ani had been spotted having a number of meetings with Mohamed Atta, the suspected hijack ringleader, near the Iraqi Embassy during a visit Atta made to the Czech Republic in April 2001.

The report prompted tense debate within the Bush administration over possible Iraqi involvement in the attack. Al-Ani is believed to be a hardened Iraqi intelligence agent. In late April the Czech Foreign Ministry called in Iraq’s mission chief in Prague and demanded that al-Ani leave the country within 48 hours. Why? U.S. and Czech officials told NEWSWEEK that al-Ani had been spotted “casing” and photographing the Radio Free Europe building in Prague. Czech officials feared al-Ani was plotting an attack on Radio Free Europe, which incurred Saddam’s wrath when it began broadcasting into Iraq in 1998. “I told the Iraqi chief of mission that [al-Ani] was involved in activities which endanger the security of the Czech Republic,” Hynek Kmonicek, the Czech Foreign Ministry official who ordered al-Ani’s expulsion, told NEWSWEEK.

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How History Will View The Court

by Stuart Taylor, Jr.

Newsweek

Last January, a month after the supreme court handed down its hugely controversial decision in Bush v. Gore–ending the month-old election stalemate and turning the White House over to George W. Bush–legal scholars across the country joined in protest. In a full-page ad in The New York Times, 554 law professors accused the high court of “acting as political proponents” for Bush, and “taking power from the voters.” Worse, the ad scolded, “the Supreme Court has tarnished its own legitimacy.”

That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country’s most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority’s claim that the Florida State Supreme Court’s recount procedures violated the Constitution’s equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices’ suggestion that their legal analysis should not carry the power of precedent.

The attacks are framed in unusually unflattering terms. Here’s a sample. Yale Law School’s Bruce Ackerman: “A blatantly partisan act, without any legal basis whatsoever.” Harvard’s Alan Dershowitz: “The single most corrupt decision in Supreme Court history.” American University’s Jamin Raskin: “Bandits in black robes.”

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The Death Penalty Debate Intensifies

by Stuart Taylor, Jr.

Newsweek

The federal government’s first execution in 38 years comes at a time when DNA and other evidence has exonerated enough death row inmates to shake public confidence in the system.

Timothy McVeigh–an unrepentant, confessed mass murderer whose guilt was utterly clear–deserved the death penalty if anyone ever did, and an overwhelming majority of Americans favored his execution. But according to a recent Gallup poll, support for capital punishment as an institution has slipped from a peak of 80 percent in 1994 to 65 percent this year, in part, no doubt, because falling crime rates have eased public fears. When pollsters specify life imprisonment without parole as the alternative, support for the death penalty drops to 52 percent. Most respondents do not believe that the death penalty deters murders-which is “the only reason to be for it,” President Bush said last year. “I don’t think you should support the death penalty to seek revenge,” he added.

Bush’s comments may have dismayed those whose convictions call for executing the worst killers “in order to pay them back,” in the words of Walter Berns, a resident scholar at the American Enterprise Institute. Meanwhile, equally resolved are religious objectors and others whose morality rejects all executions as immoral and “uniquely degrading to human dignity,” in the words of the late Justice William J. Brennan, Jr.

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Is It Sexual Exploitation If Victims Are ‘Virtual’

by Stuart Taylor, Jr.

Newsweek

In 1982, when the Supreme Court first upheld a state law banning child pornography, nobody was thinking about the possibility of making child porn without a kid. But since then wonders of modern technology have brought us virtual child porn: images that look exactly like children engaging in sexual conduct but are created by computers, without using real children. This has teed up a new issue for the court: does the First Amendment right to free speech protect the creation, distribution and possession of computer-created child porn?

Five years ago Congress expanded the federal child-porn law to cover the virtual variety. The Child Pornography Prevention Act of 1996 bans any image that "appears to be" sexually explicit conduct by an actual child. Congress found not only that pedophiles use such images to whet their own appetites and lure children into sexual activities, but also that virtual child porn can "desensitize the viewer to the pathology of sexual abuse or exploitation of children."

Rejecting these justifications as constitutionally insufficient, a panel of the U.S. Court of Appeals for the Ninth Circuit, sitting in San Francisco, voted 2-1 in December 1999 to strike down the 1996 statute. The decision came in a lawsuit brought by the Free Speech Coalition, an adult-entertainment trade association, along with a painter of nudes, the publisher of a book on nudism and a photographer. Only "the protection of the actual children used in the production of child pornography" can justify a ban on child porn, the Ninth Circuit panel held. In seeking Supreme Court review, the Justice Department countered that the ban on virtual child porn was necessary to protect "children who may be abused as a result of the dissemination of visual depictions of child pornography." The Supreme Court agreed in January to hear the case.

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Bush V. Gore May Be Just The Beginning

by Stuart Taylor, Jr.

Newsweek

Long after George W. Bush takes office, the 2000 election will continue to cast a shadow over the Supreme Court. Democrats are seething at what they consider a blatantly political, conservative activist decision by five Republican-appointed justices to end all recounts in Florida and hand the presidency to Bush. Many conservative Republicans, who have long fought against liberal judicial activism, are equally uncomfortable with the activist aura of the court’s decision–no matter how pleased they may be with the outcome. They are now counting on Bush to fill any vacancies on the court with reliable conservatives who would move the law to the right. With speculation that both 76-year-old conservative Chief Justice William H. Rehnquist and 70-year-old centrist Justice Sandra Day O’Connor may retire in the next year or two, Washington is already bracing itself for what could be the nastiest confirmation battles since Robert Bork and Clarence Thomas. "Whoever gets it is going to go through hell," predicts one Republican leader.

Yet some good could still come from the lingering bitterness over Bush v. Gore. Skepticism about liberal and conservative activism, combined with the near-even Democratic-Republican split in the Senate, could create the strongest movement in memory to fill court vacancies with moderate justices who are genuinely committed to that old conservative motto, "judicial self-restraint."

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The Snippy Supremes

by Stuart Taylor, Jr.

Newsweek

Things are getting ugly at the U.S. Supreme Court. In the weeks since the election, the justices have tried to conceal their internal differences about how to resolve the political brawl in Florida–speaking, at least publicly, with one voice. But last week those barely hidden divisions became all too visible. In its extraordinary Saturday ruling that ordered Florida to halt manual recounts, the court split 5-4, along conservative-liberal lines. As the justices prepared to hear arguments scheduled for Monday morning–warp speed for the court–the majority seemed to indicate that it was preparing to put an end to the recounts once and for all.

That may be good news for George W. Bush, but it would be terrible for the court. The justices, whose moral authority as a calm council of wise elders has survived many ideological battles, are now apparently as divided as the res…

Things are getting ugly at the U.S. Supreme Court. In the weeks since the election, the justices have tried to conceal their internal differences about how to resolve the political brawl in Florida–speaking, at least publicly, with one voice. But last week those barely hidden divisions became all too visible. In its extraordinary Saturday ruling that ordered Florida to halt manual recounts, the court split 5-4, along conservative-liberal lines. As the justices prepared to hear arguments sched