Opening Argument – An Outrageous Rush to Judgment

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.

Opening Argument – Emergency Powers Should Be Temporary

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The principle is that while the president should have power during an extraordinary emergency to temporarily disregard outdated laws that may impede his ability to protect American lives, that power should lapse once he has had time to seek appropriate congressional changes in the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

Opening Argument – Missing From the Immigration Debate

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.

Opening Argument – Decommission the Commissions

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.

Opening Argument – In Praise of Judicial Modesty

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?"

Opening Argument – The Trouble With Texas

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.

Opening Argument – Leak Prosecutions: The Gathering Storm

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.

Opening Argument – Wiretaps: How to Fix FISA

National Journal

A bipartisan congressional consensus seems to be emerging: First, the Bush administration’s eavesdropping program (or something like it) should be continued to try to avert Al Qaeda attacks. Second, such spying should be subjected to oversight by Congress and the courts, regardless of whether President Bush wants it to be.

What kind of oversight? And how should Congress update the Foreign Intelligence Surveillance Act of 1978 to deal with the unprecedented magnitude of the internal security threat posed by jihadists who covet doomsday weapons? If we get the answers wrong, we will end up with weaker defenses against terrorism, insufficient protections against the abuse of civil liberties, or both.

The most specific proposal so far is terrible — Senate Judiciary Committee Chairman Arlen Specter’s notion that Congress should ask the secret Foreign Intelligence Surveillance Court to weigh in on whether the program is constitutional. That would amount to a request for an advisory opinion on a broad matter of policy. Courts have spurned such requests since the dawn of the Republic. The reason is that their constitutional mandate is to resolve individual cases and controversies — not to help set broad policies, let alone to micromanage presidential spying on the enemy in wartime.

Specter aside, we need to adapt the judicial role in enforcing the Fourth Amendment ban on "unreasonable searches and seizures" to current realities. The courts have traditionally decided in advance (or, when speed is crucial, after the fact) whether the government has "probable cause" to target an individual for searching or electronic eavesdropping. But as Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit noted this Wednesday in a Wall Street Journal op-ed, this model is "hopeless as a framework for detecting terrorists," which amounts to "a search for the needle in a haystack."

Opening Argument – Dangerous Claims, Slippery Games

National Journal

I argue below that President Bush and his aides are twisting facts as well as law in their obsession with avoiding independent oversight of his warrantless electronic surveillance program. But I begin with three concessions.

First, the Foreign Intelligence Surveillance Act of 1978 is outdated. It bars and impedes some forms of electronic spying that may well be essential in an era of suicidal terrorists who seek doomsday weapons and are bent on mass murder.

Second, the president’s inherent constitutional power to protect the nation justified his authorization in the weeks after 9/11 (but not indefinitely) of a National Security Agency surveillance program that would otherwise have been a criminal violation of FISA.

Third, the administration may well be right in saying that leaks and media disclosures of classified information have done serious damage to national security in a few cases and possibly some damage in the case of Bush’s NSA program.

But is Bush credible when he claims that the leaking to and the disclosure by The New York Times on December 16 of aspects of the previously secret NSA program "puts our citizens at risk"? And was Attorney General Alberto Gonzales credible when he testified on February 6 that to submit to congressional regulation and judicial oversight would mean "effectively killing the program" by blowing secrets essential to its effectiveness — and that this view was the "consensus" of congressional leaders whom the administration had briefed?

I don’t believe them, except perhaps as to the inertness of some congressional leaders. And the Bush and Gonzales track records inspire no trust in their veracity. Especially when Bush suggests that the NSA program eavesdrops only on international communications involving "known Al Qaeda and/or affiliates" (emphasis added).

Palace Revolt

Newsweek

James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey’s farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me w

James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey’s farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right–and to doing the right thing–whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn’t have it any other way."