Category Archives: Atlantic

Stuart Taylor, Jr.’s The Atlantic media appearances.

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Innocents in Prison

by Stuart Taylor, Jr

The Atlantic

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners—including 15 who had been sentenced to death—have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey’s and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

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Shortsighted on Judges

by Stuart Taylor, Jr

The Atlantic

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges—liberal and conservative alike—are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

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Are the Democrats Serious?

by Stuart Taylor, Jr

The Atlantic

So far, at least, both sides deserve to lose the brewing battle over congressional Democrats’ subpoenas for information about White House deliberations on the firings of nine U.S. attorneys.

The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.

“Presidents who really care about executive privilege and secrecy don’t make the claims about confidentiality and evading legal rules wantonly and libidinously,” asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Clinton for misusing executive privilege to shield himself.

The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else-besides beat their chests in righteous rage-that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of former White House Counsel Harriet Miers and political aide Sara Taylor.

But the Democrats could change this equation by showing that their subpoenas have a legislative goal that transcends embarrassing President Bush.

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Is There a Middle Ground on Race?

by Stuart Taylor, Jr

The Atlantic

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court—in Seattle and metropolitan Louisville, Ky.—"are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students—especially poor blacks—hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

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How Not to Make Terrorism Policy

by Stuart Taylor, Jr

The Atlantic

The years of revelations about White House pressure on the Justice Department to concoct far-fetched legal rationales for physically tormenting terrorism suspects, for wiretapping without warrants, and for implementing other Bush policies has obscured a still more fundamental flaw in the Bush policy-making process.

That flaw was the almost exclusive focus on what could be done to captives as a matter of law—as interpreted by aggressive advocates of virtually unlimited presidential war powers—rather than on what should be done as a matter of morality and policy, taking account of careful cost-benefit analysis and past experience.

The result was that while approving in 2002 and 2003 the use of "extreme physical pressure on captives" during interrogations, the CIA and the White House not only disregarded the lessons of history but also engaged in "little substantive policy analysis or interagency consideration."

So said Philip Zelikow, a lawyer who was a senior adviser to Secretary of State Condoleezza Rice from February 2005 until December, in a probing lecture for the Houston Journal of International Law on April 26.

Instead of grappling with the large body of evidence about what has worked best in the past, including the experience of such terror-torn U.S. allies as Israel and the United Kingdom, the administration, Zelikow asserted, pushed interrogators simply to "do everything you can [to break captives], so long as it is not punishable as a crime under American law."

These interrogation policies have been and still are being softened, in a partly secret process. But it is unclear whether President Bush and other top officials have learned that wise policy-making involves more than pushing interrogators to use every harsh method permitted by the Justice Department’s view of the law.

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‘Injustice 5, Justice 4’

by Stuart Taylor, Jr

The Atlantic

This headline, borrowed from a New York Times editorial, pretty well sums up the news media’s portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post‘s front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority’s analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law … striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union’s charge that this was an "astonishing decision" by an "activist court."

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A Judicial Overreaction to Bush Abuses?

by Stuart Taylor, Jr

The Atlantic

A Federal Appeals Court’s unanimous rejection on June 11 of President Bush’s effort to deny judicial review and due process to a legal alien who has been militarily incarcerated for four years—because Bush says he is a Qaeda agent—was a ringing and welcome defense of our constitutional freedoms.

But I worry that two of the three judges may have gone too far, or exposed a gap in our laws that Congress needs to fill, in their additional, broader holding. It was that Ali Saleh Kahlah al-Marri and other suspected Qaeda terrorists arrested in the United States cannot be detained at all, no matter how dangerous, unless the government brings criminal charges against them within a week of arrest or is unable to deport them.

Whether or not correct as a matter of law, this majority opinion points, in my view, to the need for explicit congressional authorization of prolonged (although not indefinite) detention and aggressive (although not abusive) interrogation of suspected Qaeda agents who cannot be criminally prosecuted. Congress should also require muscular due process safeguards and exacting judicial review, which the Bush administration has furiously opposed, to prevent erroneous detentions of innocent people.

More broadly, the chasm between the views of the president and these two judges on how such cases should be handled illustrates yet again the need for Congress to end its shameful abdication of its duty to rethink the war-on-terrorism’s detention and interrogation policy from the ground up.

The easy issue in the al-Marri case is whether foreigners living legally in this country who are suspected of being Qaeda sleeper agents—such as al-Marri, a Qatari graduate student at Bradley University who lived in Peoria, Ill., with his wife and five children—can be subjected to long-term military detention based solely on the president’s say-so, with no right to due process or judicial review.

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Another Gonzales Horror Story

by Stuart Taylor, Jr

The Atlantic

Every day that Attorney General Alberto Gonzales is allowed to remain in office is corrosive to constitutional governance and an invitation to further politicization of the Justice Department.

That is the main lesson of former Deputy Attorney General James Comey’s astonishing revelations on May 15 about Gonzales’s sinister involvement in a March 2004 effort to continue a then-secret warrantless eavesdropping program after it had been declared unlawful by then-Attorney General John Ashcroft and his subordinates.

Meanwhile, the May 14 resignation of Paul McNulty, Comey’s successor as deputy attorney general, further depleted the ranks of principled professionals in the demoralized department, which Gonzales has been filling with inexperienced political hacks. In the words of Arlen Specter, the Senate Judiciary Committee’s senior Republican, as long as Gonzales is in charge, “it’s embarrassing for a professional to work for the Department of Justice.”

Comey, testifying to the Senate Judiciary Committee, described an extraordinary scene the night of March 10, 2004, in George Washington University Hospital’s intensive care unit. Ashcroft, so sick with pancreatitis that he had designated Comey as acting attorney general, was drugged with painkillers after the removal of his gallbladder the day before.

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Congress Should Censure Gonzales

by Stuart Taylor, Jr

The Atlantic

What’s Congress to do when the president insists on keeping an attorney general who is so manifestly unequal to the demands of his job and so incapable of giving accurate answers to simple questions that even the president’s partisans want him out?

Impeaching Alberto Gonzales, as some are starting to suggest, would be overkill. It would make no sense to put the nation through the agony of an impeachment trial to get rid of one ineffectual, hopelessly uninformed presidential lapdog. But this does not mean that members are powerless to do anything beyond groaning at a Bush spokeswoman’s fantastic claim that Gonzales is “doing a fantastic job” and looking for reasons to skip town to avoid the next installment of his cloddish testimony.

The House or Senate—or, better, both—should adopt a resolution censuring Gonzales, or (as Sen. Charles Schumer, D-N.Y., has suggested) stating its lack of confidence in him.

Although unusual, a vote censuring an executive branch official would be both constitutional and supported by precedent. To be sure, the Republican House leadership argued in December 1998 that it would be unconstitutional to take a floor vote censuring President Clinton. But this was just a pretext for a politically driven determination to deny moderate Republicans any less-drastic alternative to voting for impeachment.

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“Hate Crimes” and Double Standards

by Stuart Taylor, Jr

The Atlantic

Consider three criminal cases.

No. 1: Christopher Newsom and his girlfriend, Channon Christian, both students at the University of Tennessee in Knoxville, were carjacked while on a dinner date in January, repeatedly raped (both of them), tortured, and killed. His burned body was found near a railroad track. Hers was stuffed into a trash can. Five suspects have been charged. The crimes were interracial.

No. 2: Three white Duke lacrosse players were accused in March 2006 of beating, kicking, choking, and gang-raping an African-American stripper, while pelting her with racial epithets, during a team party.

No. 3: Sam Hays bumped against Mike Martin in a crowded bar, spilling beer on Martin’s "gay pride" sweatshirt. Martin yelled, "You stupid bastard, I should kick your ass." Hays muttered, "You damned queer" and threw a punch, bloodying Martin’s lip.

Now the quiz.

Which of these would qualify as a federal case under a House-passed bill—widely acclaimed by editorial writers, liberal interest groups, law enforcement officials, and many others—expanding federal jurisdiction to prosecute "hate crimes"?

Bonus question: Why have the interracial rape-torture-murders in Knoxville been completely ignored by the same national media that clamor for more laws to stop hate crimes—the same media that erupted in a guilt-presuming feeding frenzy for months over the far less serious Duke lacrosse charges, which were full of glaring holes from the start and turned out to be fraudulent?

The answers.

The interracial Knoxville rape-murders would probably not qualify as hate crimes. The reason is that although the murderers were obviously full of hate, it cannot be proven that they hated their victims because of race. (Or so say police.)