Monday, December 19, 2011

Obama Puts U.S. on Side of LGBT Rights Worldwide

      President Jimmy Carter is commonly listed as a failed chief executive, but his administration created a lasting legacy by making support for human rights a central tenet of U.S. foreign policy. In the three decades since Carter left the White House, no administration — Republican or Democratic — has felt free to disregard human rights issues in making major foreign policy decisions or in shaping U.S. relations with individual countries.
      President Obama and Secretary of State Hillary Rodham Clinton have now laid the basis for a similar legacy by making support for LGBT rights a cornerstone of U.S. foreign policy. In a coordinated intercontinental media hit earlier this month [Dec. 6], Clinton delivered a powerful speech in support of LGBT rights worldwide to the United Nations Human Rights Council in Geneva, Switzerland, at the same time that Obama was issuing a presidential memorandum directing concrete steps for federal agencies to take to promote LGBT rights abroad.
      Clinton’s espousal of LGBT rights came as the U.N. body was celebrating the sixty-third anniversary of the adoption of the Universal Declaration of Human Rights in 1948. She acknowledged that LGBT rights were on nobody’s radar screen at the time, but noted that over time the international charter has been expanded to encompass the rights of indigenous peoples, children, and people with disabilities. In like fashion, Clinton said, the charter’s guarantees extend to LGBT persons as well. “Gay rights are human rights,” she declared, “and human rights are gay rights.”
      Clinton continued by cataloguing the many violations of those rights around the world. LGBT persons, she said, “are arrested, beaten, terrorized, even executed. Many are treated with contempt and violence by their fellow citizens while authorities empowered to protect them look the other way or, too often, even join in the abuse. They are denied opportunities to work and learn, driven from their homes and countries, and forced to suppress or deny who they are to protect themselves from harm.”
      State Department aides were reportedly concerned enough about possible adverse reaction to the speech that they did not advertise its subject in advance, according to the New York Times account. Among the 47 countries represented in the U.N. Council are such LGBT rights violators as Saudi Arabia, where homosexuality is illegal and sometimes prosecuted, and Uganda, where a controversial bill calls for executing “repeat offenders.” Despite the aides’ concerns, the Times reported that no one walked out of the speech and Clinton received a standing ovation.
      Clinton took pains to anticipate and refute the potential arguments against recognizing LGBT rights. Homosexuality is not an exclusively Western phenomenon, she said, as some in Africa and the Middle East contend. “Gay people are born into and belong to every society in the world,” Clinton said. Nor is gay rights a “luxury” that only the West can afford. In fact, Clinton said, failing to protect LGBT rights imposes costs, including lives of gay and straight people alike lost to disease and violence.
      Most broadly, Clinton said that neither religion nor culture can justify denying LGBT persons the universal rights to equality and dignity. “No practice or tradition trumps the human rights that belong to all of us,” Clinton said. “And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing.”
      As Clinton and the White House both emphasized, the United States was already on record in support of LGBT rights at the U.N. council. The U.S. provided critical support in June to a South African-sponsored resolution expressing concern about the violence and discrimination that people suffer because of their sexual orientation. The resolution, approved by a 23-19 vote, marked the U.N.’s first official recognition of LGBT rights. It asked for the U.N. High Commissioner on Human Rights to complete a study on by December on the extent of discriminatory laws and practices worldwide.
      The mammoth report, released Dec. 15, confirmed the incidence of homophobic and transphobic violence and discrimination around the world. Violence against LGBT persons “tends to be especially vicious compared to other bias-motivated crimes,” the report noted.
      Around the world, same-sex conduct remains illegal in 76 countries, according to the report, including five that provide the death penalty for homosexual activity. On the other hand, the report noted encouragingly that 30 countries have decriminalized same-sex conduct in recent years. That list includes the United States, where the Supreme Court ruled anti-sodomy laws unconstitutional in 2003.
      In Washington, the White House said the State Department and other agencies were being directed to combat the criminalization of LGBT status or conduct and to protect vulnerable LGBT refugees and asylum seekers. The White House also called for leveraging U.S. foreign aid to support LGBT rights. As a small step toward that end, the State Department committed $3 million to a planned public-private fund to support LGBT rights organizations abroad.
      The U.S. initiatives cannot guarantee LGBT rights progress overnight. But documenting LGBT rights violations in U.S. and U.N. reporting over time will keep these issues on the international agenda. And despite the continuing political divisions in the United States, future administrations — Republican or Democratic — may find that the Obama administration has set a course on LGBT rights that cannot be reversed or ignored.

Monday, December 12, 2011

Republicans Call Off Truce on Judicial Nominees

      Hypocrisy was aptly defined by the French essayist La Rochefoucauld as the homage that vice renders to virtue. Twice last week, Senate Republicans hypocritically paid homage to the principle of executive branch authority by blocking nominations by President Obama to an important federal court and a new consumer protection agency.
      The GOP’s hypocrisy was especially blatant in denying an up-or-down vote to Caitlin Halligan, Obama’s choice to fill one of three existing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. Back when a Republican was in the White House, GOP senators were aghast that Democrats, then in the minority, were blocking votes on President Bush’s nominees for federal judgeships.
      Feelings ran so high that the then Senate majority leader, Tennessee’s Bill Frist, threatened to rule filibusters out of order, an action so antithetical to Senate traditions that it was labeled “the nuclear option.” Senatorial peace was restored only after a bipartisan group of seven Democrats and seven Republicans — the so-called Gang of 14 — pledged, in writing, not to support filibusters of judicial nominees in the future except in the event of “extraordinary circumstances.”
      The agreement paved the way for confirmation of three of Bush’s nominees for federal appeals courts: Janice Rogers Brown, Priscilla Owens, and William Pryor. Each gained confirmation by votes that fell short of the 60 that would have been needed to cut off debate. But the Democrats’ forbearance then has not been returned in kind now that they hold power in the Senate and Republicans are in the minority.
      Earlier this year, Senate Republicans succeeded in blocking a vote on Obama’s nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu, a rising academic star with unabashedly progressive views, would have become the only Asian American on a court with jurisdiction over Hawaii, California and other states with substantial Asian American populations. The vote to cut off debate was 52-43, strictly along party lines with one Republican (Utah’s Orrin Hatch) voting present and one GOP senator absent (Alaska’s Lisa Murkowski).
      Senators divided almost the same way in the 54-45 vote on Tuesday (Dec. 6) to try to cut off debate on Halligan’s nomination to the D.C. Circuit. Only Murkowski broke ranks to vote with 53 Democrats in favor of allowing Halligan’s nomination to come to a vote. Hatch again voted present. In both votes, all four of the Gang of 14 Republicans still serving in the Senate voted to support the filibusters despite their previous commitments: Arizona’s John McCain, South Carolina’s Lindsey Graham and Maine’s Susan Collins and Olympia Snowe.
      Ian Milhiser of the liberal group Center for American Progress underscored the Republicans’ hypocrisy by pulling up back-then quotes from Graham and 13 other GOP senators who voted to support the filibuster against Halligan despite their principled opposition to the practice earlier. One of the best examples came from Tennessee’s Lamar Alexander: “I would never filibuster any president’s judicial nominee. Period.” Kentucky’s Mitch McConnell, now the Senate minority leader, said back then that allowing filibusters against judicial nominees would amount to amending the Constitution to require a supermajority vote for confirmation.
      The case against Halligan fell far short of whatever meaning could reasonably be given to the admittedly ambiguous phrase “extraordinary circumstances.” Halligan was criticized primarily for her role, while solicitor general for the state of New York, in supporting a lawsuit seeking to hold gun manufacturers liable for gun homicides and street crime. The second count against her consisted of a brief she filed in behalf of a Guantanamo detainee challenging the president’s power to detain suspected terrorists without full judicial review.
      As a make-weight, Graham and some other Republicans said the D.C. Circuit’s caseload does not require filling any of the existing three vacancies. Graham pointedly noted that Democrats made the same argument in opposing Bush’s nominees for the D.C. Circuit. Whatever the caseload figures may be, the Republicans’ stance clearly has more to do with political payback than judicial administration.
      Just two days after Halligan’s nomination was buried, Senate Republicans followed by thwarting a vote on Obama’s nomination of Robert Cordray to head the new Consumer Financial Protection Bureau. The 53-45 vote to cut off debate, seven short of the 60 votes needed, again was almost completely along party lines, with only one GOP senator — Massachusetts’ Scott Brown — breaking ranks and Maine’s Olympia Snowe voting present.
      Without contesting Cordray’s qualifications, Republicans have vowed to oppose any nominee for the new agency without substantial changes to the new law that created it in the wake of the financial crisis. Democrats counter that Republicans should not hold the agency’s leadership hostage to legislative changes that they lack the votes to enact.
      Judicial politics has been a hardball game now for three decades, ever since President Ronald Reagan began selecting nominees recruited by conservative activists precisely for their conservative views. To Republicans, the Estrada filibuster raised the stakes by blocking a vote for the first time on a nominee with clear majority support in the chamber. When the Gang of 14 produced their agreement to abjure filibusters in the future, Hatch presciently described the accord as a truce, but not a ceasefire. With the Liu and Halligan nominations, Republicans apparently have signaled that the truce is called off.

Monday, December 5, 2011

Meddlesome Congress Is No Help on War on Terror Cases

      The Senate made a gallant effort last week to justify its former reputation as the world’s greatest deliberative body as it tried to define the government’s authority to detain suspected terrorists. The week began with a bipartisan compromise fashioned by two senators with experience generally taking the high road on the issues and ended on Dec. 1 with a thorough, and well-reasoned, floor debate.
      Despite those indicia of legislative statesmanship, the detention provisions included in the National Defense Authorization Act represent a step backward in the United States’ war against al Qaeda. Once again, Congress wants to micromanage the Obama administration’s enforcement tactics against al Qaeda members by limiting prosecutions in federal courts in favor of trials in the still unproven system of military commissions. In addition, the Senate majority apparently hopes courts will allow use of military-style detention and interrogation against suspected terrorists even if they are U.S. citizens arrested within the United States.
      True, the two sections at issue could have been worse. In section 1032, the bill supposedly mandates military detention for persons “determined to be part of al Qaeda or associated forces” who “have participated in a planned or actual attack or attempted attack on the United States or its coalition partners.” But it allows the administration to waive that requirement if it shows that a waiver would best serve the interest of national security.
      The mandatory military detention provision would not apply to U.S. citizens or lawful permanent residents. But in section 1031, the bill leaves unclear whether the general authority to detain suspected members of al Qaeda, the Taliban, or associated forces applies to U.S. citizens. An earlier version had been written to apply to U.S. citizens unless prohibited by the Constitution.
      In fashioning the compromise, Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., chairman and ranking member respectively of the Armed Services Committee, said it was designed to leave the law on the issue unchanged. In effect, that would leave as the last word on the subject the Supreme Court’s somewhat cryptic decision in Hamdi v. Rumsfeld (2004). That ruling allowed military detention of a U.S. citizen captured abroad but left unanswered the question of military detention for a citizen arrested within the United States.
      In Senate debate last week, California Democrat Dianne Feinstein, who chairs the Senate Intelligence Committee, passionately argued against allowing indefinite military detention of U.S. citizens. “This country is special because we have certain values, and due process of law is one of those values,” Feinstein said. “So I object. I object to holding American citizens without trial.”
      From the opposite side, South Carolina Republican Lindsey Graham, a former military lawyer, argued with equal force in favor of allowing military detention for U.S. citizens: “I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril,” Graham said. “You can get killed in the process. You can get detained indefinitely.”
      Feinstein’s amendment failed on a mostly party-line 45-55 vote. Three Republicans voted in favor: Illinois moderate Mark Kirk and the libertarian-minded Mike Lee of Utah and Rand Paul of Kentucky. But the amendment fell short because 10 Democrats joined 45 Republicans in opposing it.
      Feinstein succeeded, however, with a second amendment that makes explicit that the provision has no effect on existing authority to detain U.S. citizens. Adopted with only one dissenting vote, the amendment effectively leaves it to the courts to answer the question left unresolved in Hamdi. In debate, Feinstein said both Levin and McCain had promised to defend that version of the legislation in conference with the House.
      The House version of the defense authorization bill is more stringent in several respects, including in its provision to require military commission trials for all suspected terrorists. The House version also would bar transferring suspected terrorists captured abroad into the United States and make it harder for the administration to transfer any of the current Guantanamo detainees to other countries. The Senate’s bill generally leaves those issues untouched.
      The preference in both chambers for military over civilian trials for suspected terrorists elevates ideological posturing over fact-based decision-making. As Feinstein and others pointed out, the government has successfully prosecuted hundreds of suspected terrorists since 9/11, under presidents of both parties: Republican George W. Bush and Democrat Barack Obama. That list extends from “shoe bomber” Richard Reid, serving a life sentence for his foiled aircraft bomb attempt in December 2001, to Faisal Shahzad, also serving a life sentence for his attempted Times Square bombing in May 2010.
      Major administration officials, including Defense Secretary Leon Panetta, CIA Director David Petraeus, and FBI Director Robert Mueller, argued against those provisions as the bills moved through the House and Senate. After the Senate action, White House officials raised the possibility of a veto.
      The administration gave way earlier this year, however, when Congress prohibited bringing any Guantanamo detainees to the United States for trial in civilian courts. The result has been to slow the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. Facts and logic notwithstanding, Obama may well find he has little choice again if Congress insists on dictating where best to prosecute suspected al Qaeda members.