Shepard Smith Condemns Torture

24 04 2009

Just fascinating. Sometimes Shepard Smith just surprises me.

And this:

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On Prosecuting Bush’s Team of Torture Lawyers

20 04 2009

From the New York Times Editorial page:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

Few, except the Obama administration itself, would quibble with what the New York Times is advocating. An official investigation followed by prosecution of those who authorized the use of torture should take place. But the question is when and by whom.

After all, President Obama has an ambitious wish list of legislative priorities inspired by the weight of several crises competing for his attention. That means that pursuing a high profile and public investigation into the abuses of person would almost certainly create a Congressional atmosphere so partisan that it would jeopardize his chances of passing a climate change bill, a health care reform bill, overhauling education No Child Left Behind, immigration reform, in addition to dealing with a likely Supreme Court vacancy even as he and his team struggle to nurse an ailing economy.

Of course, this does not preclude Congress itself from conducting its own low profile investigation while encouraging more open source reporting on the matter. Nor does it prevent certain state bar associations from disbarring the very lawyers who used legal fictions to circumvent the law.

In other words, Obama could allow others to make the case for him based on the record provided thus far over the course during the next few years. Over time pressure by certain Bush officials will mount and cause some of them to flip either because of the level of scrutiny involved, their pariah status within their respective fields, or maybe their conscience will eat at them.

That way provided there’s sufficient pressure from Congress and if the public develops an appetite for prosecuting senior Bush officials, which does not quite exist yet, the Obama administration could go in for the easy kill by appointing an independent prosecutor.

At minimum, it could set the stage for the creation of a Commission of Inquiry, as proposed by Chariman of the Senate Judicary Patrick Leahy. Certain individuals intimately involved in the torture regime could cooperate with the commission’s inquiry in exchange for some immunity.

Perhaps it would not satisfy many human rights advocates who want everyone responsible prosecuted now, but it would afford us an opportunity to learn from our mistakes.





Kenn Starr Backs Harold Koh For State Gig

15 04 2009

That makes two. Ken Starr and Ted Olson, former Solicitor General under Bush the younger, have both endorsed President Obama’s nominee for State Department Legal Advisor Harold Koh. As some of you may know, Koh has come under attack from the likes of Glenn Beck and Jay Sekulow and their foot soldiers on the far right who have tried to portray Obama’s nominee as a nutty liberal looking to supplant American law with Sharia law and a threat to the “fundamental American principles of representative government.”

The baseless accusations have already been debunked by Dahilia Lithwick and others but now right wingers will now have to shout down their own. In a letter dated yesterday, Dean of Pepperdine Law School Ken Star said, “I am firmly convinced that Harold is extraordinarily well qualified to serve with great distinction in the post of Legal Advisor,” and Ted Olson who said he had “ the greatest respect for Harold Koh,” and added, “He’s a brilliant scholar and a man of great integrity.”

Part of the reason that conservatives have gone after Harold Koh, Dawn Johnsen, and other executive nominees is to set the stage for the larger battle over a Supreme Court nominee which may come as soon as this summer. Conservatives hope to target and tarnish as many people with SCOTUS nom resumes, like Koh, in an effort to eliminate them from contention but also to keep throwing red meat to their base to keep them engaged on issues that even vaguely have culture warrior significance.





Justice Ginsberg on Foreign Law

13 04 2009

From Jefferey Toobin at the New Yorker:

It looks like Harold Koh, President Obama’s nominee for legal adviser at the State Department, may turn out to be the first real confirmation fight in the new Administration. The controversy has been mentioned in a handful of newspapers, but there’s plenty of Internet fire on the anti-Koh, and pro-Koh, side.

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts.

I wonder if the so-called controversy over Koh’s transnationalism can be explained away by simply saying that if citing international law is good enough for the Justices on the U.S. Supreme Court, then it should be good enough for a legal adviser to the U.S. State Department. The Court has cited international law, which is not the same as being bound by it, in cases involving gay rights and the death penalty and the sky did not fall, though it did anger the right.

Adam Liptak reported in the NYT on Saturday that Justice Ruth Ginsberg thinks the debate concerning international is sorta ridiculous.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

My sentiments exactly.

Side note: Toobin, apparently has not been following the battles over President Obama’s other executive nominees fight that closely, since he seems to think that Koh would be the first real confirmation fight.
Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel in the Justice Department, has come under attack from the far right for being a lawyer for NARAL at one point and her unsparing criticism of Bush’s warrantless wiretapping program and use of torture to extract intelligence information from detainees. Republicans are threatening to filibuster her nomination.

Another nominee, Thomas Saenz, was in the pipeline, though never formally announced, to be Obama’s top civil rights enforcer at the Justice Department until the anti-immigrant right sunk his nomination for his work on successfully challenging local ordinances banning day laborers from city streets and of California’s Proposition 187, a 1994 ballot measure that prevented undocumented immigrants from taking advantage of certain social services.





Misreading the Bush Doctrine in the WaPo

26 01 2009

On Sunday, the Washington Post published a story with the following headline: “Bush Doctrine Stalls Holder Confirmation.” Now I understand that headline writers have quite a bit of leeway in deciding what they title certain articles, but there’s a difference between being creative and misrepresenting the main idea of a story.

The lead in the article says, “Even as Senate Republicans seek assurances that new leaders at the Justice Department will not prosecute former government officials over national security abuses, one of the highest-profile investigations of the Bush era is grinding to a close.” The rest of the article describes how Senate Republicans want to assurances from Eric Holder that he will not seek to investigate and prosecute those who may have tortured or otherwise abused detainees under interrogation and the destruction of tapes recording those sessions. That has nothing to do with the Bush Doctrine.

Simply stated, the Bush doctrine holds that the U.S. has a right to extinguish national security threats with the use of military force against a country or nonstate actor as preventive measure. That is to say, we may wage preventive war to anticipate threats before they blossom into full blown eminent threats. This is a radical idea because international law calls for threats to at least be eminent before claiming to wage an attack in self defense against an enemy. Otherwise, there is no way of truly distinguishing a war of choice from a war of necessity.

By contrast, the WaPo article on Senate Republicans stalling the confirmation of Eric Holder as Attorney General has to do with pressuring him not to investigate officials interrogating war on terror suspects, not his views on what constitute the judicious use of military force. One is a question of who to prosecute and what for, whereas the other has to do when we should go to war against or at least strike an enemy.

Its hard to imagine that the folks at the WaPo thought that making these kind of distinctions do not matter.





Myth of Eric Holder as Flaming Liberal

12 12 2008

The National Review editors on the Holder nomination:

He is convinced justice in America needs to be “established” rather than enforced; he’s excited about hate crimes and enthusiastic about the constitutionally dubious Violence Against Women Act; he’s a supporter of affirmative action and a practitioner of the statistical voodoo that makes it possible to burden police departments with accusations of racial profiling and the states with charges of racially skewed death-penalty enforcement; he’s more likely to be animated by a touchy-feely Reno-esque agenda than traditional enforcement against crimes; he’s in favor of ending the detentions of enemy combatants at Guantanamo Bay and favors income redistribution to address the supposed root causes of crime.

I find this whole portrayal of Eric Holder simply laughable, especially since Obama’s nominee position on certain issues defies liberal orthodoxy. Holder advocated for stiff penalties for marijuana users, supported mandatory minimums, provided legal advice for Chiquita Brands International Inc., and while serving as U.S. Attorney for the District of Columbia acquired a reputation as very pro-police even at a time when use of force by cops were at historic highs.

In sum, Holder was a prosecutor who shared a lot, though not all, of the conservative views that many other prosecutors have. So, to suggest that he’s some flaming liberal is completely off base.





On the Anti-Eric Holder Movement

12 12 2008

By nominating Eric Holder (see picture) to become the nation’s next attorney general, President-elect Barack Obama intended to signify the end of Bush era cronyism, incompetence, politicization, and use of enhanced torture techniques at the Department of Justice.

At the press conference where the President-elect unveiled his national security team, Obama said, “Let me be clear. The attorney general serves the American people. And I have every expectation that Eric will protect our people, uphold the public trust, and adhere to our Constitution.”

He also praised Holder’s independence and spoke of the native New Yorker’s deep familiarity “with the law enforcement challenges we face from terrorism to counterintelligence, from white-collar crime to public corruption.”

But there seems to be a movement afoot in among conservatives to portray Holder as a figure that lacks the integrity and the independence necessary to become the nation’s top law enforcement officer. In referring to the Marck Rich affair, the National Review tell us that Obama  nominated an “AG nominee who promoted a corrupt pardon process that sprung mass-murderers from prison.”

The Wall Street Journal editorial board would have their readers believe that Holder is a terrorist sympathizer because President Clinton pardoned 16 members of a rebel and domestic terrorist group seeking state sovereignty for Puerto Rico called the Fuerzas Armadas de Liberación Nacional. Other critics of the Holder nomination are even dredging up the whole Elian Gonzales affair as another instance that implicated him in another low point for the Clinton administration.

One has to wonder why the Holder opposition people were not as critical of the Alberto Gonzales nomination, considering he would be going from White House Counsel to running the Department of Justice. As many people pointed out at the time the appointment was fraught with conflicts of interest problems. At least Holder did not come from an Obama White House position to become the nation’s top lawyer.

At any rate, for his part, Holder has already admitted that the Marc Rich incident was a mistake. This is not to say that it does not merit scrutiny. But it does suggest, however, that it should not overshadow a long record of distinction in public service.

Here is a man who served as a federal prosecutor within the Justice Department’s Office of Public Integrity  going after everyone from influence peddlers in and out of government and organized crime figures. As Deputy Attorney General in the Clinton administration, Holder also “issued guidelines on the use of the False Claims Act in civil health care matters,” according to his biography on the Covington & Burling website.

After serving as a judge for some time, Holder also set up a Children Exposed to Violence Initiative within the Justice Department. In sum, Holder has the experience, the record, and the know how to run the Justice Department – all of which is a must for the next AG nominee considering its the Department’s current state. But of course, the real goal here is not to shoot he kill on this nomination in my opinion, the real goal here by conservatives is not to kill the Holder nomination, but to generate enough of a cloud of suspicion and simply to knock Obama down  a notch.

Just as the guilt by association card has been used to implicate Obama in the  Gov. Blagojevich pay to play scandal right wingers are trying to use Holder’s involvement in President Clinton’s controversial pardons to tar Holder and Obama with the same brush of perceived corruption.

And now the anti-Holder opposition has resorted to pressuring Senate Judiciary Chairman Pat Leahy to delay the start of the confirmation hearings. Sam Stein of the Huffington Post is reporting that Republican Senators Jon Kyl and Tom Coburn have signaled that if they are not given more time to “consider” Holder’s record, they will hold up his confirmation, i.e., filibuster the nomination. If Senator Leahy were to grant to such a request, that would only penalize Obama for having picked his nominee so early, which gave the Senate at least 39 days to review Holder’s record. And as Leahy himself noted in a letter to Senator Arlen Specter on the same subject:

Other Attorney General nominations, which you and I have considered together, include that of your fellow Pennsylvanian, Dick Thornburgh, whose hearing was held 24 days after he was announced. He remained in office when Vice President George H.W. Bush was elected President. When he left the post toward the end of that administration, we proceeded with Bill Barr, whose hearing was held 25 days after he was announced. The beginning of President Clinton’s administration was unusual, but when he settled on Janet Reno, her hearing was held 26 days after she was announced.

News reports feel say the Obama team feels fairly confident that they have they votes, but they may be concerned that if the Republicans can make the vote on the nomination partisian then they could force the President-elect to expend the kind of political capital the won his centrist transition team a 79 percent approval rating.

The Holder nomination serve as an early test of whether or not team Obama can handle Republican opposition in Senate as much as it will serve as an early indication of how united the GOP’s caucus is in the that chamber.