I Know ... Let's Make It Easier

(Cartoon by Ted Rall published on his website 3/19/14.  Click on image to enlarge.)

You know, all along I've objected to those damned dog-and-pony secretive show trials down in Guantanamo Bay as a travesty of American principles.  I was certain that the American civilian judicial system was more than capable of dealing fairly and openly in trying those suspected of the 9/11 attacks and other planned attacks.  I looked to trials such as the current one involving Sulaiman Abu Ghaith to prove my point.

Now, I'm not so sure.

From a CNN report:

In a scathing ruling, a federal judge has denied a request by Osama bin Laden's son-in-law to have alleged 9/11 mastermind Khalid Sheikh Mohammed testify in his defense at trial, either by teleconference from the Guantanamo Bay detention camp or via deposition.

In a motion to the court over the weekend, Sulaiman Abu Ghaith's defense team said Mohammed can provide evidence that their client had no knowledge of planned terror attacks and asked that portions of an unsworn, written statement by Mohammed be allowed before the jury even if his testimony was not.

 

Mohammed, the admitted mastermind of the September 11, 2001, terror attacks, issued a rambling defense of Abu Gaith, who is on trial in New York. Abu Gaith is accused of being al Qaeda's propagandist in the wake of the 9/11 attacks. The rare statement by Mohammed was in response to questions from Abu Gaith's attorney and was filed in U.S. District Court in Manhattan on Sunday night.

 

At a hearing on the matter Tuesday morning, U.S. District Judge Lewis Kaplan called the defense motion "entirely baseless" and said nothing Mohammed may testify to is relevant to Abu Ghaith's case.    [Emphasis added]

What's next?  The judge issuing simplified jury instructions which directs the jury to find the defendant guilty?

I am deeply ashamed. 

Elders To The Rescue

The Federal Circuit Courts of Appeal are in dire straits. More than 10% of the current seats are vacant because of congressional delays in voting on nominees over the past two administrations. Case filings are up, which complicates matters even further. In order to keep things afloat, even if just barely, the appellate courts have had to rely on judges long past their retirement age. "Seniors" have had to fill the gap which only gets larger each year.

...Nearly 11% of the nation's 875 lifetime positions are empty.

Senior judges, working overtime to keep the wheels of justice turning, earn the gratitude of their overwhelmed colleagues. But they do not earn a penny more for continuing to work, many of them almost full time, than they would if they were to hang up their robes and head for the golf course. ...

All but three of the 9th Circuit's 19 senior judges heard cases over the last year. Their collective caseload accounted for 33% of the appeals court's work in the year that ended in September, said Molly Dwyer, the court's clerk. [Emphasis added]

Many of the senior judges were appointed and confirmed during the Carter and Reagan administration, so they obviously have the experience. Many of them are also in their 80s, and while they are doing their jobs beautifully, they cannot continue to be considered an endless solution to the vacancy problem. Additionally, even if the vacancies were filled tomorrow, the burden of the federal court system would still be heavier than it ought to be because each circuit simply needs more judges to do the job required under our system. Federal court officials have been begging Congress for years to increase the number of judges, but Congress has refused to act, usually for "budgetary" reasons. That obviously will be the excuse used by the 112th Congress as well.

Meanwhile, nominees to the bench continue to await confirmation votes, even in the midst of this judicial emergency.

A few recent confirmations brought the vacancies below the 100 mark, but Wheeler points to the alarming trend of lengthening times between when a vacancy occurs and when it is filled. One of the three open seats on the 9th Circuit — soon to be four with Schroeder's senior status — has been vacant for more than six years. The nominee to another of the vacancies, UC Berkeley law professor Goodwin Liu, has weathered more than a year of Senate scrutiny and interrogation with no confirmation vote in sight.

This is an appalling state of affairs in a nation which brags about the "rule of law."

Elections Matter

One of the sorriest stories about the White House and the 111th Congress is that they've been so tied up over the economy and over health care reform, very little else has been done. Oh, President Obama made a raft of "recess appointments" last week while the Congress was on Spring Break, but those appointments are essentially short lived and didn't put even a small dent in the list of his appointments just hanging out there waiting for Senate approval.

Among those appointments are nominees for the federal bench, and the federal judiciary is screaming for judges to be named, approved, and installed. One of those nominees is Goodwin Liu for the U.S. 9th Circuit Court of Appeals. Mr. Liu has gotten the stamp of approval from the American Bar Association. Amazingly, Kenneth Starr also feels he is well qualified for the position.

So what's the problem? In a word, Republicans. Led by Sen. Sessions, the Republicans have made it clear they will fight this nomination because Mr. Liu is considered too far out of the mainstream to qualify for the federal bench. What really bugs Mr. Sessions is that a Democratic president has proposed him, not that Mr. Liu is actually out of the mainstream. Even the "center-left" editorial board of the Los Angeles Times recognizes the "Just Say No" impetus behind Mr. Sessions bombast, the same bombast he used against Supreme Court Justice Sotomayor, hardly a liberal firebrand.

Yes, Mr. Liu is young, and yes, he hasn't any judicial experience, but it's not like the Republicans, when in power, haven't proposed similar nominees, as the Times editorial pointed out:

Because he is an academic, Liu has a long paper trail of views about the Constitution and constitutional interpretation that's unusual in a judicial nominee. He's also very young. But so were some notable appeals court appointees of Republican presidents. For example, Alex Kozinski, now the chief judge of the 9th Circuit, was 34 when President Reagan named him to the appeals court. Kenneth W. Starr, the future Whitewater special prosecutor, was 37 when Reagan placed him on the U.S. Court of Appeals for the District of Columbia Circuit. ...

Like his Republican forerunners, Liu represents a departure from the usual practice of filling appeals courts with middle-aged lawyers with previous judicial experience or long careers in private practice. The question for outspoken academics (and politicians) who ascend to the bench, however, is not how old they are, but whether they can trade the role of advocate for that of arbiter. An additional question for appellate judges is whether they will apply Supreme Court precedent even when it conflicts with their own constitutional vision. In Liu's case, that would mean that he couldn't get ahead of the Supreme Court on whether to recognize education, shelter or subsistence as constitutional rights. The American Bar Assn. obviously has concluded that Liu can satisfy both obligations. It has rated him "well qualified." We agree.

So, why isn't Harry Reid forcing the issue?

Who knows. It's clear that the Republicans have no intention of keeping their powder dry on any issue presented by the Democrats and by the President. Neither should the Democrats, especially after 8 years of making nice to the Republicans gave us a Supreme Court laden with troglodytes. And it's not like the Democrats have all the time in the world to flesh out the President's agenda. November is closing in on them, and the mood of the country, all across the political spectrum, is ugly, especially when it comes to incumbents.

It's time for Senate Democrats, particularly Harry Reid, to remind the Republicans that elections matter, and that the last one was won by the Democrats.

Pulping Deregulation

Are our grandchildren safe now? It seems that a lot of the removal of protections for them is being seen for the threat to our future that it was, and in its turn removed. Today, the forest service has been returned to actual service, instead of used as another environmental hazard.

A federal judge has struck down the Bush administration's change to a rule designed to protect the northern spotted owl from logging in national forests.

U.S. District Judge Claudia Wilken ruled from Oakland, Calif., on Tuesday that the U.S. Forest Service failed to take a hard look at the environmental impacts of changing the rule to make it easier to cut down forest habitat of species such as the spotted owl and salmon on 193 million acres of national forests.

"I am hopeful that this is the last nail in the coffin to (President George W.) Bush's assault on our public forests," said Pete Frost, an attorney for the Western Environmental Law Center in Eugene, which represented plaintiffs in one of two cases challenging the rule.

At stake was a provision of the National Forest Management Act that required maintaining viable populations of species that indicate the health of an ecosystem, such as the spotted owl. The Bush administration changed the rule last year so it required a framework of protection, rather than maintaining viable populations of wildlife.

The ruling marked the third time federal courts have turned back attempts to change the 1984 version of what is known as the viability rule within the National Forest Management Act.

The judge wrote that an environmental impact statement done by the Forest Service "does not evaluate the environmental impacts of the 2008 rule," and the agency failed to comply with Endangered Species Act requirements to consult with other federal agencies on whether the rule changes would jeopardize the survival of endangered species.

The world is safe for now from the depredations that were perpetrated over the years that the wingers dominated. The threat continues, though, while destructive claims continue to be heard equally, through the media, with reputable voices.

The Senate now has a sufficient majority of Democrats, which should keep the world safer for awhile. This assumes that the new majority will see through the winger sham of deregulation's being good for business. As one safety scare after another has disrupted our markets (food poisoning from spinach and peanut butter for instance) it should have become clear enough that deregulation is a threat, not a benefit.

The future of our world is in better hands today. Now, while they have the advantage, the sane members of Congress should put in place solid members of the judiciary and executive branch, continuing protections for the public for as long as possible.

Teh Stupid, It Burns!

I hate getting up in the morning and being slapped with yet another example of Congressional Democrats' stupidity. Today was just one of those days. The source of my irritation was this article in today's Washington Post. It seems the President was whining about the slow confirmation process when it comes to the federal judiciary to a bunch of conservative lawyers:

President Bush stepped gingerly into the presidential campaign on Monday, offering an implicit endorsement of Sen. John McCain's judicial philosophy and accusing Democrats of contributing to a "broken confirmation process" for federal judges.

Broken confirmation process? Say, what? Last I checked, the Mr. Bush has gotten just about everything he has wanted in this respect. Lots of other folks who are keeping track feel the same way:

Nan Aron, president of the Alliance for Justice, a liberal advocacy group, said that 10 of the nation's 13 federal appellate courts are now "dominated by conservatives" and that Roberts and Alito are part of a "conservative juggernaut."

"This administration has cemented a transformation of our federal judiciary begun by Ronald Reagan, which has resulted in less freedom, less privacy and fewer constitutional protections," Aron said.

OK, the facts are that the federal judiciary has swung to the right as a result of the Republican majorities and the Republican presidents the past 20 years. Here comes the really stupid part, however.

Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush's nominees in the past two years than were approved under the previous six years of GOP control.

The White House says 324 of 376 federal court nominees have been confirmed during Bush's tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton's presidency.

Our Democratic legislators are freakin' bragging about their complicity in turning the federal judiciary, including the US Supreme Court, over to those who have essentially demonstrated a total disdain for due process and civil rights as guaranteed by the US Constitution.

Well, to be fair, at least one senator sees the problem for what it is:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said in a statement that the "balance on our nation's federal courts is precarious," with 60 percent of the federal bench appointed by Republican presidents. "We cannot afford more of the same if Americans' rights and liberties are to be preserved," Leahy said.

More like Sen. Leahy, please.

And gags for the rest of those clowns.

And In Other News, Some Justice

In the midst of a welter of articles on the Palin-Biden debate and the "crisis" on Wall Street that must be fixed via a $700 billion bandaid, it would have been easy to overlook this article in today's NY Times. And that would have been unfortunate because the news the article contained demonstrated that there is still a little room for hope in this country. Maybe the executive and legislative branches aren't doing their jobs, but some in the judicial branch still take their constitutional duties seriously.

Finding that a Yemeni cleric and his assistant had been deprived of a fair trial because of errors by the presiding judge, a federal appeals panel in New York on Thursday overturned their convictions in a prominent terrorism case once hailed by the Bush administration as a significant blow to Al Qaeda.

The appeals court judges found that the defendants, Sheik Mohammed Ali Hassan al-Moayad and his aide, Mohammed Mohsen Yahya Zayed, did not receive a fair trial because the trial judge, Sterling Johnson Jr., allowed the jury to hear inflammatory testimony and other evidence that prejudiced the defendants’ case. ...

...in overturning the verdict, the three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that Judge Johnson erred in allowing the jury to hear evidence like the graphic testimony of a survivor of a fatal 2002 bus bombing in Tel Aviv, in which the defendants had not been implicated. Prosecutors had said the testimony was necessary to establish that the defendants knew that Hamas, which claimed responsibility for the bombing, engaged in terrorist activity, a point the defendants did not dispute.

Judge Barrington D. Parker Jr., writing for the appellate panel, said that the bombing, which killed six people, “was almost entirely unrelated” to the charges.

He also wrote that Judge Johnson should not have allowed testimony from another witness, Yahya Goba, who described spending time at a Qaeda training camp in Afghanistan that Mr. bin Laden visited.

But Judge Parker wrote that Mr. Goba’s testimony ranged far beyond that, as he described the camp’s training in explosives and weapons and the visits by Mr. bin Laden. He also summarized a speech Mr. bin Laden gave in which he talked about the importance of “performing jihad,” Judge Parker noted.

Judge Parker wrote that the value of the testimony of both the Tel Aviv bus bombing victim and Mr. Goba “was far outweighed by its unfair prejudice.”

This was a case the Bush administration brayed delightedly about after winning at the trial level, claiming that it was evidence that our he-man President was right to wage the Global War On Terrorism and he was right to trash the rights guaranteed by the Constitution because it was the only way to keep us safe.

Obviously, the federal prosecutors had been given orders to win, no matter what it took. In this case, the appeals court panel found that it took too much, and both the federal prosecutors and federal judge overstepped the bounds, so much so that they ordered the matter returned to the trial level in front of another judge (which indicates to me that the appellate judges had no confidence that the trial judge would mend his ways).

Both the prosecutors and the trial judge had to have known that the testimony, which had almost no bearing on the charges, would have an inflammatory effect on the jury. The trial, after all, was held in Brooklyn. By putting that testimony on, they rigged the trial. This time they didn't get away with it.

Well done, Second Circuit. Very well done.

Well, Duh!

An article in today's Los Angeles Times contained absolutely no surprises, but it did provide some interesting, if depressing, statistics. Because of President Bush's success in getting his nominees to the federal bench confirmed, the federal courts have now tilted decidedly to the right.

After nearly seven years in the White House, President Bush has named 294 judges to the federal courts, giving Republican appointees a solid majority of the seats, including a 60%-to-40% edge over Democrats on the influential U.S. appeals courts.

The rightward shift on the federal bench is likely to prove a lasting legacy of the Bush presidency, since many of these judges -- including his two Supreme Court appointees -- may serve for two more decades.

And despite the Republicans' loss of control of the Senate, 40 of Bush's judges won confirmation this year, more than in the previous three years when Republicans held the majority. [Emphasis added]

While a judge is not supposed to be seen as either Republican or Democrat, it's a pretty safe bet that those appointed by a conservative will hold the same or similar views. That certainly held true when the US Supreme Court upheld the Partial Birth Abortion law this past term on a 5-4 basis, with Justice Alito holding the deciding vote.

What is so stunning about the conservative shift is that Democrats, still hoarding their dry powder, are proud of their accomplishments:

"The progress we have made this year . . . is sometimes lost amid the partisan sniping over a handful of controversial nominations," said Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, in a year-end statement.

Oh, that's going to make the base of your party happy, Senator. Especially now that the anti-abortionists have gotten their sizeable foot in the door.

The far right is gloating, as well they might.

"This issue unites the base," said Curt Levey, executive director of the Committee for Justice, a group that lobbies for Bush's judicial nominees. "It serves as a stand-in for the culture wars: religion, abortion, gay marriage and the coddling of criminals."

Nothing irritates conservatives more, he said, than having unelected judges decide politically charged issues that some believe should be left to voters and legislators. "Conservatives tend to blame judges for the left's success in the culture war," Levey said.

There you have it in a nutshell.

Right now, about all we can do is hope that both Justice Ruth Bader Ginsberg and Justice John Paul Stevens live long and prosper.

Protecting and Defending Constitution Passed Off to Legislative Branch

Once upon a time, and long, long ago and far, far away ... there was a Constitution that gave the President the duty of enforcing the law.

Today at around 10:30 ET, the 110th Congress issued subpoenas with the intent of seeing that those powers are not being abused. Since it seems as if the power of the Department of Justice is being used to interfere with judicial process, we need to examine carefully how firings were used in the removal from office of U.S. Attorneys. Some were involved in proceedings at the time that make their firings look very questionable. Diane spoke about this earlier. At correntewire, Chicago Dyke has several references including this one; Study: White House Guilty Of "Political Profiling" from Bob Geiger.

Sadly, we have presently in power an element much more interested in a presidential role of suborning the laws rather than protecting and defending them. There is no pretense in the White House that the truth is respected. Campaigning on the promise that he would not indulge in Nation Building, the cretin in chief has made that a major object of his regime, even to the extent of committing unilateral warmaking to do it. Most recently in ongoing lies, the cretin in chief promised during the congressional campaigns that Rumsfeld would stay. Ooops.

A major lie was committed in engineering war, as the entire executive branch involved itself in convincing the public, and Congress, that WMD's were a threat from Saddam Hussein -which all good intelligence showed it was not. A very Big Lie had to be created and then used against us to make that point. Now the GOP major meme is that the cretin in chief was ill-advised.

It is hardly a surprise that 'the truth' would be a problem for the executive branch in its chosen functions. Its major exercise has been the creation of lies to support criminal activity.

When the legislative branch became Democratic, it became a real problem for the executive branch. The power of subpoena changed into hands with a real interest in the truth. Watching the war criminals dig in reminds me most especially of the Nixon years.

At the time of Watergate, crimes had been committed. The executive branch knew that letting the truth get out would be the end. The Nixon White House made a deal to let Nixon resign, with a pardon to come, to get out from under prosecution for those crimes. A few of the Nixon cabal went to jail, but not nearly enough. Some of them are still in high places, and still trying to make the world safe for their crimes.

We're at the first step in a constitutional crisis with the shrubbery. The presser last night was designed to make a show of cooperation - an exercise which gives cooperation a bad name. Today's subpoenas are the right response to that evasion of the process for getting sworn testimony.

The conditions for 'allowing' aides to testify ensure that any story, no matter how ludicrous, will be accepted instead of a true detailing of the actual grounds for firing U.S. attorneys. Even more important, the grounds for establishing that their loyalty ranked above their oaths of office for the remaining U.S. Attorneys will be protected. There are many instances in which investigations appear to have been interfered with. Lambert's very excellent post yesterday gave a very chilling one in which a North Carolina congressman was protected from justifiable investigation in crimes against this country.

Crimes against the country are not the proper function of the executive branch. They are, however, increasingly the object of this one's functions and the modus operandi of its officials.

As Lambert at correntewire points out, this is a watershed. Once the obstacles thrown up by the cretin in chief have been trashed, the way is clear for the Democratic Congress to demand the truth from industrial strength liars. If we still have a functional judicial branch despite the liars' best efforts, the subpoenas will bring out testimony under oath and the inevitable punishment for crimes.

I am not entirely alone in thinking it will be a far, far better thing that this test comes now. We still have time to straighten out the executive branch, and wipe up after the war criminals. Our standing in the world is probably forever greatly damaged, but at least we can make the three branches of government function passably again.

The die is cast. (For you who love teh Latin, "Alea Jacta Est" - from the writings of Julius Caesar, of the original Long Knives.)

Judicial Activism

In the rising accusation that Clinton did it first, don't forget, Tom DeLay was providing the drag during Clinton's terms against Clinton's power of appointment. In the rising steam of presidential privilege palaver, don't forget, the power of appointments was severely hindered in Clinton's terms by the drag of delay by Tom DeLay.

In 1997: [Herman Schwartz in Washington Monthly Judges, watch your backs : The Congressional Republicans have officially declared war on "judicial activists," judges who go beyond interpreting the law into the realm of what GOP lawmakers consider "making" the law. Rep. Bob Barr of Georgia is but one of several Republicans to denounce the current crop of jurists for "assuming for themselves the powers and responsibilities of legislators or executives"--an offense those on the right say must not be treated lightly. They have been particularly incensed over a few recent decisions setting aside death sentences, excluding evidence in a drug case, and blocking the implementation of the California referendum ending affirmative action programs. This May, Barr joined Majority Whip Tom DeLay of Texas in calling for the impeachment of judges as a "proper tool" for "political offenses," with an impeachable offense defined by DeLay as "whatever a majority of the House of Representatives considers it to be at a given moment in history" Their stated goal, according to DeLay: "The judges need to be intimidated"

With an eye toward weeding out future judicial activists, GOP senators have virtually hijacked the appointment process. Judiciary Committee Chairman Orrin Hatch has declared he will not "stand by to see judicial activists named to the federal bench" To this end, Hatch and his fellow Republicans have instituted a massive slowdown on judicial appointments. According to political scientist Sheldon Goldman of the University of Massachusetts, who has been studying the nomination process-for 40 years, the Republicans are engaged in an effort "unprecedented in its scope... to deny the Clinton administration as many nominations as possible"[emphasis added]

No doubt the present maladministration hopes all this has slipped away into the recesses of history, and only the right wing still hears echoes of the early attacks on the presidential power to appoint justices that reflect the president's - and thereby the voters' - viewpoint.

The fact is, presidential appointment to the judiciary was a contentious issue during the DeLay attacks on presidential powers, and was used to jimmy away residual respect for the constitution by fear of lasting effects.

DeLay's expression of disgust with the refusal of federal judges to intervene in the case of Terri Schiavo was merely the latest in a series of assaults by some members of Congress on judges and justices who made decisions with which they vehemently disagreed. DeLay suggested that the responsible judges would be called "to answer for their behavior" and added in reference to impeachment charges, "There's plenty of time to look into that." In fact, as early as 1997, DeLay advocated impeaching federal judges who had issued rulings that were "particularly egregious."

DeLay's stance ignores the unbroken, two-century-long streak during which no federal judges have been impeached and convicted for their actions on the bench.

The historical efforts by the right wing of the GOP is being overlooked conveniently enough in the present row. Undermining Clinton was the aim of those late '90's attacks on the power of appointment. The unfortunate residue of disrespect for those powers is playing out now in the present regime.

The use of unadorned political manipulation directly on the judiciary reflects the DeLay effect. Judges are just another means of advancing a political agenda.

Justice is suborned by that long and concentrated propaganda campaign, which has had its effect of the GOP mind. The Constitution is next on the list to eliminate, so that the right wing can reign Supreme.

The Third Branch

The federal judiciary continues to confound this administration by refusing to knuckle under to the theory that 9/11 requires that we throw the US Constitution out the window, that we deny habeas corpus, that we illegally detain people without charge, and that we try them in secret. The latest evidence that the third branch of government is having none of this nonsense comes in the form of a holding by a federal judge in Minneapolis. From yesterday's Minneapolis Star Tribune:

A federal judge in Minneapolis ruled Friday that the government must provide Mohamed Abdullah Warsame with a more detailed accounting of the terrorism-related allegations he's facing so that he can defend himself at trial.

Warsame, 33, is a former Minneapolis Community College student of Somali descent who has been detained since February 2004 on charges that he lied to federal agents about his activities surrounding an Afghanistan training camp. He stands accused of providing material support to Al-Qaida and of conspiring to support the terrorist network.

U.S. District Judge John Tunheim said the government's failure to provide more information was hindering Warsame's efforts to challenge the charges. Specifically, Warsame wants to know the timing of his alleged actions, the identities of his alleged coconspirators, and the identities of anyone who allegedly died as a result of his activities. [Emphasis added]

Mr. Warsame has been held in solitary confinement for three years without knowing exactly what the government is charging him with. It's impossible for him to prepare a defense to the charges under those circumstances. He can't gather evidence showing what he was doing on particular dates without knowing what those dates are. He can't prove that he did not conspire with other individuals to harm the US without knowing the identities of those individuals. It doesn't take a genius to figure out that this kind of 'hide the salami' tactic violates every principle of fairness there is. If the basic principles underlying the promise of a fair trial is denied to one defendant, they are denied to all.

The "you know what you did and now you're going to pay for it" theory of criminal justice is deplorable. It's also an extension of this government's rationale for illegal wire tapping and email reading: "if you're not doing anything wrong, you have nothing to fear." The federal judiciary has been doing its job. Now its time for Congress, another branch of government, to start doing its job by revisiting the various bills passed under the guise of Homeland Security.