Monday, June 27, 2011

The Careless Ethics of Justice Clarence Thomas

      Clarence Thomas took the oath of office as a Supreme Court justice two decades ago under an ethics cloud cast by charges of sexual harassment that came down to a still unresolved swearing contest between himself and Anita Hill. Today, Thomas is again under an ethics cloud, but for the most part the actions and omissions being questioned are undisputed, with only their significance up for debate.
      The current ethics inquiries began in January with the disclosure that Thomas and his conservative colleague Antonin Scalia had attended a political retreat in January 2008 run by the wealthy industrialist brothers Charles and David Koch, high-spending patrons of political causes. To the public interest group Common Cause, Scalia’s and Thomas’s attendance raised questions about their later participation in the high-profile campaign finance case Citizens United because the Koch brothers stood to benefit from a ruling to lift restrictions on corporate spending in political campaigns.
      In the same month, the Los Angeles Times reported that Thomas had failed for at least five years to disclose the income that his wife Ginny had received from the Heritage Foundation, the conservative think-tank. Ginny Thomas earned $680,000 during the time period, but until he revised the financial disclosure forms recently following the newspaper story Thomas had shown no spousal income on the legally mandated reports.
      Now, the New York Times has raised a third ethics issue by depicting Thomas as having provided critical fund-raising assistance to a planned museum to celebrate the history and culture of his birthplace, Pinpoint, Georgia. As the Times reported in a long investigative article [June 18], Thomas helped the promoter of the museum secure a multimillion-dollar donation from Harlan Crow, a Texas real estate magnate and personal friend and benefactor of Thomas’s for years.
     The Code of Judicial Conduct, in Canon 4C, generally prohibits federal judges from participating in fund-raising activities beyond assistance in planning or solicitation of family members or fellow judges. The code is binding on most federal judges, but not Supreme Court justices.
      The details of Thomas’s role in the Pinpoint museum project are yet to be filled in. According to the Times, Algernon Varn, grandson of the owner of the cannery to be preserved and converted into the museum, Thomas told him, “I’ve got a friend I’m going to put you in touch with.” The story does not specify whether Thomas personally called Crow or merely allowed Varn to use his name in soliciting the Texan. Both Thomas and Crow declined to respond to questions, the newspaper said.
      Crow was reported to have made a seven-figure contribution to finance the purchase and restoration of the cannery, where Thomas’s mother once worked as a crab picker. Earlier, Crow had helped finance a library project in Thomas’s childhood home of Savannah dedicated to the justice, the Times stated. Crow also gave Thomas a historic bible once owned by Frederick Douglass and valued at $19,000. And he reportedly provided $500,000 to Ginny Thomas to start a Tea Party-related group.
      By checking flight logs, the newspaper also reported circumstantial evidence that Thomas has flown on corporate jets provided by Crowd to attend speaking events. The newspaper said no travel gifts were reported on Thomas’s financial disclosure forms.
      Conservative court-watcher Curt Levey sees no real ethics issues here. Levey, executive director of the Committee for Justice, dismisses criticism of Scalia’s or Thomas’s attendance at the Koch brothers’ event and minimizes the omissions of Ginny Thomas’s income as mere error. He finds nothing unethical in what he assumes to have been Thomas’s role in merely introducing the Pinpoint museum promoter to his friend Crow.
      For Levey, the episode is fueled by liberal anger and paranoia. But there is purpose, he believes. Liberals, he says, hope to intimidate conservative justices on issues headed their way — notably, President Obama’s health care reform — and to delegitimate any decisions that go against liberal positions.
      Thomas apparently shares this view, according to the Wall Street Journal’s account of a speech the justice gave to a Federalist Society conference at the University of Virginia on Feb. 26. In the speech, Thomas said his critics “seem bent on undermining” the Supreme Court’s legitimacy in the public’s mind.
      The public interest group Common Cause, however, believes the issues are substantial and call for a response not only from Thomas but also from Chief Justice John G. Roberts Jr. The group says Scalia and Thomas both should have recused themselves from the Citizens United case and the decision now should be set aside and the case re-argued. Arn Pearson, the group’s vice president for program, dismisses as implausible Thomas’s claim that he misunderstood his obligation to disclose his wife’s income. And the possible fundraising violations reported by the New York Times call for a full review by the court and for some mechanism to apply the ethics code binding on the justices themselves.
      Levey thinks these issues will not go far, and he may be right. The court is not about to reconsider Citizens United. The Justice Department is not about to take on a justice’s now corrected errors on financial disclosure. And any thought of impeachment dies in the Republican-controlled House of Representatives. But the events paint an indelible portrait of a justice who takes less care with ethics issues than the public might expect from the highest court in the land.

Monday, June 20, 2011

Obama, Critics at War Powers Impasse on Libya

      For all their education and practice in rhetorical skills, presidents sometimes have trouble with the simplest and most straightforward of words. Bill Clinton stumbled over the meaning of “is.” George W. Bush tortured the definition of “torture.” And now Barack Obama is telling Congress and the public that the United States is not engaged in “hostilities” in the Libyan civil war.
      Like Clinton and Bush before him, Obama is playing word games with a purpose. In this case, Obama is avoiding the obligation under the War Powers Resolution to consult with and notify Congress before introducing U.S. forces into “hostilities” abroad and to withdraw those forces after 60 days unless Congress affirmatively authorizes the continued deployment.
      No president has loved the War Powers Resolution, which Congress passed in 1973 after the Vietnam escalation horse was years out of the barn. Many of Obama’s supporters, however, expected him to be the antidote to eight years of presidential hubris under George W. Bush.
      Now, Obama finds himself assailed for presidential presumption by partisan Republicans, disappointed leftist Democrats, middle-of-the-road political observers, and the editorial boards of, among others, the New York Times and Washington Post. Some House Republicans want to cut off funding for the U.S. role in the Libyan intervention. Meanwhile, an unlikely bloc of 10 House members led by Ohio’s leftist Democrat Dennis Kucinich and North Carolina’s conservative Republican Walter Jones filed a federal court suit seeking to declare the continued deployment in Libya unconstitutional under the War Powers Resolution.
      The likelihood of definitive resolution of these issues is small. Federal courts have stayed out of war-powers issues during and ever since the Vietnam War. The funding cutoff is probably a dead letter in the Senate even if it is approved in the House. But Congress is equally unlikely to pass the bipartisan resolution sponsored by Democrat John Kerry and Republican John McCain in the Senate to approve the Libyan intervention. House Republicans are not apt to give Obama the benefit of congressional blessing for any of his foreign policies.
      Apart from the politics, the law on the issue will also remain unsettled. Obama’s position, explained near the end of a 32-page memorandum submitted to Congress last week [June 15], is that the limited U.S. military operations in the Libya intervention are “distinct from the kind of ‘hostilities’ contemplated by the [War Powers] Resolution’s 60 day termination provision.”
      U.S. forces are playing “a constrained and supporting role in a multinational coalition,” according to the memorandum jointly prepared by the State and Defense departments. The coalition’s mission, authorized and limited by a United Nations resolution, is solely to protect civilian populated areas from attacks and to enforce an arms embargo and no-fly zone.
      “U.S. operations,” the memorandum continues, “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”
      It is easy to scoff at the assertion that U.S. drone strikes and support for NATO air strikes aimed at Libyan government sites and facilities do not constitute “hostilities.” It is easy as well to doubt the rosy out-of-harm’s-way scenario envisioned in the memorandum.
      The legal reasoning is tenable, however, as a way to accommodate the rigidities of the War Powers Resolution with the diplomatic and military realities of wielding U.S. power in increasingly hard to define global crises. But Obama’s position was undermined by the disclosure – by the New York Times’s relentless presidential-power watchdog Charlie Savage – that the acting head of the Justice Department’s Office of Legal Counsel and the general counsel of the Defense Department both disagree.
      Caroline Krass at Justice and Jeh Johnson at the Pentagon both reportedly advised that the U.S. military activities in Libya amount to “hostilities” and the War Powers Resolution applies. According to Savage’s story, Obama chose instead to follow contrary advice from White House counsel Robert Bauer and Harold Koh, the State Department’s legal adviser.
      The puzzling aspect of the administration’s position is the long delay in its coming. The U.S.-NATO air campaign in Libya began on March 20. By the administration’s account, U.S. forces had shifted to a support role by April 7. Administration officials insisted the War Powers Resolution deadline was inapplicable, but failed to set out the reasoning until last week – nearly 90 days after the intervention began.
      The State-Defense memorandum makes a good case for the Libyan intervention in policy terms. The critics on Capitol Hill have no comparable position paper to answer the question: what next? They seem simply to want to get the United States out of the affair, leaving the fate of the Libyan revolt to the Europeans or the rebels themselves.
      The War Powers Resolution was an earnest attempt to make both president and Congress more accountable in issues of war and peace. As Robert Chesney, national security expert at the University of Texas Law School, wanly concludes, however, it has been less than a success. The president, he says in a commentary written for the Brookings Institution, takes policy seriously, but not law, while Congress takes law seriously, but not policy. Nothing in the current episode suggests the two political branches are likely to change their ways any time soon.

Monday, June 13, 2011

‘Right-Wing Legal Engineering’ and the Roberts Court

      Whatever else one can say about Newt Gingrich’s shot-in-the-foot presidential campaign, the former speaker of the House was right in his fateful “Meet the Press” appearance to caution his fellow Republicans against “right-wing social engineering.” Gingrich directed his advice to the House Republicans who want to transform Medicare, but the Republican appointees who now control the Supreme Court’s decisions could also benefit from the advice.
      In particular, Chief Justice John G. Roberts Jr. needs to ask himself how he wants the Roberts Court remembered years from now. So far, the record is mixed on how far Roberts will carry the conservative views he brought with him to the court at the risk of exposing the court to criticism for right-wing legal engineering.
      With 5-4 votes, the court has weakened reproductive rights for women (Gonzales v. Carhart, 2007) and narrowed enforcement of the exclusionary rule (Herring v. United States, 2009). More dramatically, the Court in 2010 freed corporations (and unions) from any limits on what they can spend in political campaigns (Citizens United v. FEC).
      On the other hand, the court stopped short of prohibiting all racial diversity policies by local school districts (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). And it caught itself right at the brink of declaring the landmark Voting Rights Act of 1965 unconstitutional. (North Austin Municipal Utility District No. 1 v. Holder). In the first case and probably in the second, however, it was Justice Anthony M. Kennedy, not Roberts, who stopped the court from a right-wing tear.
      The court’s next two major tests of potential right-wing engineering were forming in lower courts last week: the constitutional challenge to President Obama’s health care reform and a new constitutional attack on campaign finance limits on corporations.
      The federal appeals court in Atlanta on Wednesday (June 8) held the third appellate-level arguments in the partisan-inspired attack on the yet-to-be-implemented health care law. Opponents say Obama and Congress exceeded the federal government’s powers in requiring everyone to have health insurance and in imposing new Medicaid requirements on the states.
      Meanwhile, a Reagan-appointed federal judge in Alexandria, Va., reaffirmed on Tuesday (June 7) his decision to hold unconstitutional the century-old ban on corporate campaign contributions to federal candidates. Judge James Cacheris ruled that the First Amendment gives corporations the right to make direct campaign contributions to candidates. Two days later, however, the federal appeals court in California became the second in two months to uphold local ordinances with similar bans on corporate campaign contributions.
      On both issues, health care and campaign finance, there are precedents from history that should weigh in the Roberts Court’s mind when these issues reach the justices, possibly as early as its next term. The Lochner-era court carried freedom of contract too far in freeing corporations from some economic regulations. And the post-Taft court of the early 1930s discredited itself by striking down some of President Franklin D. Roosevelt’s New Deal programs to solve what were then the nation’s most pressing economic problems.
      The Roberts Court conservatives are likely to approach both issues, however, with views and sympathies in line with the challengers. Roberts made his distaste for campaign finance regulations clear in his second term by leading the court’s decision that, in advance of the Citizens United decision, gutted the McCain-Feingold law’s effort to curb corporate-financed political commercials (Federal Election Commission v. Wisconsin Right to Life, 2007).
      The court later struck down a separate part of the law, the so-called millionaire’s provision, that sought to level the playing field somewhat for candidates running against wealthy, self-financed opponents (Davis v. Federal Election Commission, 2008). Later this term, the court seems all but certain to strike down an Arizona law aimed at fortifying public campaign financing systems by increasing public subsidies for candidates running against high-spending opponents (Arizona Free Enterprise Club v. Bennett).
      In his ruling, Cacheris anticipated that the Citizens United decision liberating corporations from a campaign spending ban similarly dooms a ban on direct contributions to candidates (United States v. Danielczyk). To do that, he had to explain away the Supreme Court’s decision only eight years ago reaffirming the ban on corporate campaign donations because of the risk of corruption (Federal Election Commission v. Beaumont, 2003.) In its decision to uphold a similar ban in a San Diego ordinance, the Ninth Circuit accurately noted that Citizens United expressly left the contribution ban untouched (Thalheimer v. San Diego).
      The challenge to the individual insurance mandate in Obama’s health care law appeals to the conservative bloc’s instincts for limited government. It also harkens to Rehnquist Court decisions that limited Congress’s Commerce Clause powers, such as the 5-4 ruling to strike down a provision creating a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). But the opponents’ argument collides with the broader view of federal power in the Rehnquist Court’s later decision to elevate the federal ban on marijuana over a state law allowing noncommercial medical use of marijuana (Gonzales v. Raich, 2005).
      After the Roberts Court’s burst of activism in 2007, Justice Stephen G. Breyer complained both from and off the bench about the majority’s lack of restraint and disregard for precedent. History may make the same assessment if the Roberts Court carries its conservative views too far in coming terms.

Sunday, June 5, 2011

Ashcroft Gets a Pass for Material-Witness Misuse

      Six weeks after the 9/11 attacks, Attorney General John Ashcroft called a news conference to announce steps the Justice Department was taking “to protect the United States from the threat of terrorist aliens.” One part of the strategy, Ashcroft said, was to take “suspected terrorists off the street” by the “aggressive detention of lawbreakers and material witnesses.”
      One of the material witnesses arrested and detained under this policy was Abdullah al-Kidd, a U.S. citizen, converted Muslim, family man, and former college football star. Al-Kidd was arrested at Dulles Airport on March 16, 2003, and over the next sixteen days handcuffed and shackled, strip-searched several times, and forced to sleep on a cement floor before a court ordered him released.
      Even so, al-Kidd’s travel was limited for another 14 months. The arrest strained his relationships with friends and family. Eventually, he was divorced and — after an employer learned of the arrest — fired. He was never called as a witness nor charged with any offense.
      Last week, the Supreme Court gave Ashcroft a pass and al-Kidd the back of its hand for his ordeal. Unanimously — with one justice recused — the court ruled that Ashcroft could not be held personally liable for the results of the policy he had so proudly proclaimed. Five of the justices went one step further to hold that government officials are free to use the material witness statute to arrest and detain U.S. citizens even if their real motive is to hold the individual in jail while they try to develop enough evidence for a real arrest.
      The government had been keeping an eye on al-Kidd for a little over a year, just as it had been surveilling uncounted other Muslim and Arab Americans in a post-9/11 dragnet. FBI agents had their suspicions about al-Kidd, especially because of his associations with Sami Omar al-Hussayen, a Saudi and a fellow student at the University of Idaho.
      The government got enough on al-Hussayen in February 2003 to charge him with visa fraud for allegedly working off campus — not permitted under a student visa — as a webmaster for the Islamic Assembly of North America. Al-Hussayen was later charged with — and then acquitted of — using the web site to provide “material support” for terrorism.
      Al-Kidd had cooperated with the FBI in previous interviews, but in March 2003 agents applied for a warrant under the federal material-witness statute. The law allows the arrest of someone whose testimony is “material to a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.”
      To make that showing, the FBI agents told the magistrate, incorrectly, that al-Kidd had just purchased a one-way ticket to Saudi Arabia. In fact, it was a round-trip ticket. The agents also failed to note al-Kidd’s previous cooperation with the agents. They heaped on insinuations about al-Kidd’s contacts with al-Hussayen and his associates, but did not indicate what testimony al-Kidd might have that would be “material” to the case against his fellow student.
      Al-Kidd was freed of all restrictions after al-Hussayen’s trial ended in April 2004 – with no conviction. A year later, Al-Kidd sued government officials and agents from Ashcroft down for what his American Civil Liberties Union lawyers called his “pretextual” arrest and detention under the material-witness statute. Al-Kidd reached settlements with the lower-level agents and corrections officials. But Ashcroft moved to dismiss the suit against him, claiming both absolute immunity and “qualified immunity” — the doctrine that shields government officials from liability in the absence of a clearly established rule that the alleged conduct was unconstitutional.
      From the start, the suit was a reach, but a federal district court judge and the Ninth U.S. Circuit Court of Appeals both rejected Ashcroft’s bid for immunity. In its ruling, the appeals court said that the Fourth Amendment prohibits pretextual arrests in the absence of probable cause of criminal wrongdoing.
      It was clear from oral arguments on March 2 that none of the eight justices saw a clearly established rule that would negate Ashcroft’s claim of qualified immunity. (Elena Kagan was recused because she was solicitor general during earlier proceedings.) So the court’s May 31 decision in Ashcroft v. al-Kidd to kick out the suit against the former attorney general came as no surprise.
      Justice Antonin Scalia’s opinion for five of the justices went further to give judicial endorsement to Ashcroft’s announced policy of what amounts to misuse of the material-witness statute. An objectively reasonable arrest, based on a validly obtained warrant, cannot be challenged, Scalia said, on the basis of an improper motive by government authorities.
      Scalia’s opinion sloughed over the doubts about the warrant against al-Kidd and his harsh treatment in detention. Liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor – highlighted those points in partial concurrences that disagreed with the majority’s decision to reach the merits of al-Kidd’s claim. A fourth justice, Anthony M. Kennedy, voiced his own doubts about the use of the material-witness statute even while joining Scalia’s opinion.
      Ginsburg closed her opinion by underlining the broader stakes in the case. Al-Kidd’s ordeal, she wrote, “is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”