For all their undoubted bravery, the men and women who waged the battle for civil rights for black Americans in the 1950s and ’60s were not alone in their struggles. They had behind them and on their side black civil rights organizations, black churches, some white liberals in churches and synagogues, some sympathetic coverage in the news media, and, as early as Brown v. Board of Education, the federal government.
Frank Kameny, who died last week (Oct. 11) at the age of 86, had virtually no one behind him or on his side when he began fighting for civil rights for gay Americans like himself in the late 1950s. Back then, homosexuals were all but alone, deemed either immoral or mentally ill or both, presumed unfit for government service, politically powerless, and invisible in information or entertainment media.
Kameny did as much as to change that, probably more, than any other single person. Speakers at a program last week sponsored by the Rainbow History Project of Washington, D.C., rightly remembered him as having laid the philosophical basis for the gay rights movement. Kameny led the legal fight to remove homosexuality as the basis for disqualification from working for the federal government. He led the successful effort to get the American Psychiatric Association to stop classifying homosexuality as a mental illness. And he coined the phrase, “Gay is good,” which over time gave gays and lesbians self-esteem and self-confidence and eventually helped change society’s views of homosexuality as well.
Kameny, a World War II veteran and Harvard-trained astronomer, started the fight out of necessity after having been fired from his job as an astronomer with the U.S. Army’s Map Service. (It is commonly reported that Kameny was arrested for cruising in Washington's Lafayette Park, but in his later appeal Kameny attributed his dismissal to his truthful disclosure on an employment form of a prior arrest in San Francisco on a baseless charge that was later expunged.) He fought his dismissal all the way to the U.S. Supreme Court, representing himself — on his own — in a strongly argued plea that his personal life had nothing to do with his government service. The justices refused to hear the case. (The 1961 petition is available here, as part of the Rainbow History Project’s Frank Kameny pages.)
In the same year, Kameny founded one of the first gay rights organizations, the Mattachine Society of Washington. There were other organizations of the same name founded in the 1950s in Los Angeles and San Francisco. (Mattacino was a character in Italian theater, a court jester of sorts.) The Washington organization was independent, however, both in form and spirit. Unlike the California organizations, Kameny resolved to be as public as possible in advocating for the rights of gays and lesbians.
It was in that spirit that Kameny led the first gay rights picketing in front of the White House on April 17, 1965 — four years before the raid on the Stonewall bar in New York City that is often treated as the beginning of the gay rights movement. The demonstration drew no news coverage except a brief mention in Washington’s Afro American newspaper, but the placards that Kameny and his dozen or so allies carried have now been turned over along with Kameny’s papers to the Library of Congress. Six years later, in 1971, Kameny ran for the District of Columbia’s non-voting seat in the House of Representatives. He was the first openly gay person to seek federal office in the United States.
Kameny was equally bold in challenging the psychiatric establishment to remove homosexuality from its authoritative Diagnostic and Statistical Manual of Mental Disorders (the so-called DSM). As speakers at the Rainbow History program recalled, Kameny led a small band of gay guerrillas into the APA’s annual meeting at a Washington, D.C., hotel, stormed the stage, and lectured the startled psychiatrists that they were all wrong about homosexuality.
Along with public advocacy, Kameny and the Mattachine Society also functioned as a self-help organization for gays and lesbians. A friend recalled to me having called the group’s hot line for medical advice after having his first same-sex experience. The society published a pamphlet with advice about what to do if arrested on sex-related charges. And Kameny provided his apartment as a way station for visiting gay activists.
The APA delisted homosexuality in 1973. Two years later, the U.S. Civil Service Commission decided that homosexuality was no longer. Eventually, the District of Columbia police retreated from targeting gays for arrests for consensual sex. And in 2003, the Supreme Court ruled, in Lawrence v. Texas, that an individual’s “intimate relationships” were of no concern to the government, at least as far as criminal law was concerned.
Kameny lived long enough to be recognized as a gay rights hero. The
obituary in the New York Times and the appreciation on the CBS program “Sunday Morning” included pictures of Kameny with President Obama in the White House, four decades after he picketed outside its gates. Kameny recognized the changes, but he was also unchanged in his determination. He was not satisfied that Congress has yet to make it illegal to discriminate in the workplace on the basis of sexual orientation. He was not satisfied that marriage equality remains a goal, not a fact. But he could take some pride in having accomplished to some extent the goal set out in the initial charter of the Mattachine Society of Washington: “to secure for homosexuals the right to life, liberty, and the pursuit of happiness.”
Monday, October 17, 2011
Tuesday, October 11, 2011
Stevens' Affectionate Memoir of Chief Justices He Knew
Five Chiefs: A Supreme Court Memoir. John Paul Stevens (Little Brown, 2011).
Sometime between John Paul Stevens’ year as a law clerk in 1947-48 and his appointment to the Supreme Court in 1975, the justices changed the way that they voted on cases in their private conferences. Back when, the justices voted in reverse order of seniority: junior justice first on up to the chief. When he arrived as a justice, Stevens discovered that the voting proceeded in order of seniority, beginning with the chief and on to the junior justice: Stevens for his first seven terms.
In his affectionate, discursive memoir Five Chiefs, Stevens says he would have preferred the earlier system, thinking it gives the junior justices a chance to persuade the court’s senior members. Still, the new system did give Stevens a chance to play a little game with his colleagues when the vote reached him with the eight justices divided 4-4.
Stevens’ colleagues at the time included the liberal William J. Brennan Jr. and the conservative William H. Rehnquist, almost always on opposite sides in closely divided cases. So, when it came Stevens’ turn, he sometimes began by saying, “I agree with Bill,” and then waiting a couple of beats before saying which one.
Admittedly, one has to be a Supreme Court junkie to get the most out of this pleasantry, but for those readers Stevens provides amusing anecdotes and interesting tidbits on every page. He recalls the time when Justice Potter Stewart whispered a disparaging comment about the lawyer then arguing to his adjacent colleague, Harry Blackmun, without realizing that his microphone was on. He also discloses that Blackmun is responsible for the rather obvious suggestion that the justices should meet for the “long conference” to dispose of the petitions that have piled up during the summer in the week before the new term begins on the first Monday in October.
The heart of the book, as the title promises, are portraits of the five chief justices that Stevens has known as a law clerk (Fred Vinson), lawyer and appeals court judge (Earl Warren), and colleague (Warren Burger, Rehnquist, and John G. Roberts Jr.). As though to establish his bona fides of objectivity, Stevens finds something favorable and something critical about each.
Stevens frankly admits that he did not admire Vinson. In line with conventional wisdom, he depicts Vinson’s appointment as product of cronyism with President Harry Truman and Vinson’s legal acumen as less than several of his colleagues. But Stevens credits Vinson with a decision on post-conviction remedies that Stevens, as a lawyer, later used to win the release of a wrongfully convicted prisoner.
Warren is praised for three major decisions: Brown v. Board of Education, the school desegregation case; Reynolds v. Sims, applying one-person, one vote to state legislatures; and Miranda v. Arizona on police interrogation. But Stevens faults Warren’s decision, in the interest of unanimity, to delay immediate implementation of the desegregation ruling, allowing massive resistance to form.
Burger is given credit for his many steps to improve administration of justice, as well as initiating the current rule limiting arguments to one hour, 30 minutes per side. It was also Burger who suggested that the cover of briefs be in different colors (for example, blue for petitioner’s brief on the merits, red for respondent’s) to help justices find cited sections during arguments. On the other hand, Stevens repeats the well known criticism that Burger was ineffective in managing the justices’ conference: allowing debate to go on too long, interjecting himself before others had spoken, and taking inaccurate notes as to justices’ votes.
Rehnquist, by contrast, was efficient and impartial in managing his colleagues, according to Stevens, not only in the conference but also in the seemingly mundane task of taking the bench. The justices are summoned for the 10 o’clock opening by a buzzer at 9:55, giving them only five minutes to assemble, don their robes, and (per custom) shake hands with each of their colleagues. Under Rehnquist, Stevens relates, the justices had an unexcelled on-time record of being ready when the 10 o’clock buzzer went off.
On the other hand, Stevens is less of a fan of Rehnquist’s jurisprudence. In particular, he criticizes Rehnquist’s decision, reversing a recent precedent, of allowing “victim impact statements” in death penalty cases. And he strongly disagrees with Rehnquist’s line of decisions protecting state governments from private suits for violating federal laws.
Roberts’ portrait, shortest of the five, stresses his legal acumen and daunting skills as an advocate in 39 cases argued before the court. Having heard all of them, Stevens writes, “I consider myself well qualified to testify that he was a superb lawyer.” But Stevens faults Roberts as chief justice for being too lenient in giving lawyers extra time for arguments after the red light has come on. He also thinks Roberts was wrong to have agreed to be sworn in at the White House: Stevens thinks the president should come to the court, not vice versa. Even so, Stevens set his view aside and agreed, as the senior justice, to administer the oath.
Stevens’ rank in history remains to be determined, but he retired with an outpouring of admiration and affection from Supreme Court watchers of all ideological stripes. After reading this memoir, readers will understand why.
Sometime between John Paul Stevens’ year as a law clerk in 1947-48 and his appointment to the Supreme Court in 1975, the justices changed the way that they voted on cases in their private conferences. Back when, the justices voted in reverse order of seniority: junior justice first on up to the chief. When he arrived as a justice, Stevens discovered that the voting proceeded in order of seniority, beginning with the chief and on to the junior justice: Stevens for his first seven terms.
In his affectionate, discursive memoir Five Chiefs, Stevens says he would have preferred the earlier system, thinking it gives the junior justices a chance to persuade the court’s senior members. Still, the new system did give Stevens a chance to play a little game with his colleagues when the vote reached him with the eight justices divided 4-4.
Stevens’ colleagues at the time included the liberal William J. Brennan Jr. and the conservative William H. Rehnquist, almost always on opposite sides in closely divided cases. So, when it came Stevens’ turn, he sometimes began by saying, “I agree with Bill,” and then waiting a couple of beats before saying which one.
Admittedly, one has to be a Supreme Court junkie to get the most out of this pleasantry, but for those readers Stevens provides amusing anecdotes and interesting tidbits on every page. He recalls the time when Justice Potter Stewart whispered a disparaging comment about the lawyer then arguing to his adjacent colleague, Harry Blackmun, without realizing that his microphone was on. He also discloses that Blackmun is responsible for the rather obvious suggestion that the justices should meet for the “long conference” to dispose of the petitions that have piled up during the summer in the week before the new term begins on the first Monday in October.
The heart of the book, as the title promises, are portraits of the five chief justices that Stevens has known as a law clerk (Fred Vinson), lawyer and appeals court judge (Earl Warren), and colleague (Warren Burger, Rehnquist, and John G. Roberts Jr.). As though to establish his bona fides of objectivity, Stevens finds something favorable and something critical about each.
Stevens frankly admits that he did not admire Vinson. In line with conventional wisdom, he depicts Vinson’s appointment as product of cronyism with President Harry Truman and Vinson’s legal acumen as less than several of his colleagues. But Stevens credits Vinson with a decision on post-conviction remedies that Stevens, as a lawyer, later used to win the release of a wrongfully convicted prisoner.
Warren is praised for three major decisions: Brown v. Board of Education, the school desegregation case; Reynolds v. Sims, applying one-person, one vote to state legislatures; and Miranda v. Arizona on police interrogation. But Stevens faults Warren’s decision, in the interest of unanimity, to delay immediate implementation of the desegregation ruling, allowing massive resistance to form.
Burger is given credit for his many steps to improve administration of justice, as well as initiating the current rule limiting arguments to one hour, 30 minutes per side. It was also Burger who suggested that the cover of briefs be in different colors (for example, blue for petitioner’s brief on the merits, red for respondent’s) to help justices find cited sections during arguments. On the other hand, Stevens repeats the well known criticism that Burger was ineffective in managing the justices’ conference: allowing debate to go on too long, interjecting himself before others had spoken, and taking inaccurate notes as to justices’ votes.
Rehnquist, by contrast, was efficient and impartial in managing his colleagues, according to Stevens, not only in the conference but also in the seemingly mundane task of taking the bench. The justices are summoned for the 10 o’clock opening by a buzzer at 9:55, giving them only five minutes to assemble, don their robes, and (per custom) shake hands with each of their colleagues. Under Rehnquist, Stevens relates, the justices had an unexcelled on-time record of being ready when the 10 o’clock buzzer went off.
On the other hand, Stevens is less of a fan of Rehnquist’s jurisprudence. In particular, he criticizes Rehnquist’s decision, reversing a recent precedent, of allowing “victim impact statements” in death penalty cases. And he strongly disagrees with Rehnquist’s line of decisions protecting state governments from private suits for violating federal laws.
Roberts’ portrait, shortest of the five, stresses his legal acumen and daunting skills as an advocate in 39 cases argued before the court. Having heard all of them, Stevens writes, “I consider myself well qualified to testify that he was a superb lawyer.” But Stevens faults Roberts as chief justice for being too lenient in giving lawyers extra time for arguments after the red light has come on. He also thinks Roberts was wrong to have agreed to be sworn in at the White House: Stevens thinks the president should come to the court, not vice versa. Even so, Stevens set his view aside and agreed, as the senior justice, to administer the oath.
Stevens’ rank in history remains to be determined, but he retired with an outpouring of admiration and affection from Supreme Court watchers of all ideological stripes. After reading this memoir, readers will understand why.
Monday, October 3, 2011
Laying Out the Facts on Awlaki Killing
When Thomas Jefferson and his fellow revolutionaries declared the American colonies’ independence from England, they began by explaining the need to lay out their reasons, in factual detail, for such a momentous decision. “A decent respect to the opinions of mankind,” Jefferson wrote, “requires that they should declare the causes which impel them to the separation.”
What was true then is true today. The United States’ national identity demands that its actions, at home and abroad, satisfy in some sense “the opinions of mankind,” both at home and abroad. So the Obama administration owes it to Americans and the rest of the world to lay out in detail its case for the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader, in a missile strike by a CIA-controlled drone aircraft in the Yemeni desert last week [Sept. 30].
Much is known about Awlaki (sometimes spelled “Aulaqi”), and much of the information is from the U.S. government. But some of what is “known” is only asserted. And some of the unsubstantiated assertions are critical in determining whether the killing of Awlaki satisfies what may be or should be the requirements of U.S. and international law.
Awlaki was born in New Mexico in 1971 and later educated in the United States after growing up in his father’s native Yemen. He was a Muslim imam of seemingly moderate views in several cities, including the Washington, D.C., area, before adopting radical Islamist doctrines that he has espoused on the Internet for nearly a decade. He was, in no uncertain terms, someone who wished the United States ill and someone who actively encouraged others to take up jihad against the United States.
In announcing Awlaki’s death, President Obama identified him as “the leader of external operations for al Qaeda in the Arabian Peninsula.” In that role, Obama said, Awlaki “took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.”
As of this writing, the evidence to back up the most specific of those charges has not been made public. Awlaki acknowledged in an interview early last year that he knew and taught Umar Farouk Abdulmutallab, the so-called “underwear bomber” in the failed 2009 aircraft bombing. But Awlaki claimed that he did not direct Abdulmutallab to carry out the attack. The British press have reported on e-mails linking Awlaki to efforts to circumvent airport security procedures in the United Kingdom. But the evidence disclosed so far appears short of proving an operational role in the foiled October 2010 plot to place bombs aboard U.S.-bound cargo planes.
Awlaki was reported more than a year ago to have been placed on a list of terrorists targeted to be captured or killed. Representing Awlaki’s father, the American Civil Liberties Union filed a federal court suit in August 2010 contesting the designation or, at the least, requiring the government to justify the decision. “Both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats,” the ACLU argued.
The government responded by filing a document showing the procedures used for targeted drone strikes but without any specific information about Awlaki. In December, Judge John Bates dismissed the lawsuit. Bates said that Awlaki’s father lacked standing to bring the action and that the suit in any event raised a political question ill suited for courts to decide.
The ACLU’s arguments were just that: arguments. Neither U.S. nor international law can be said to have a settled position on the rules applicable to targeted killings outside an active combat zone. But in his role as the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, the U.S. law professor Philip Alston laid out criteria in a May 2010 report comparable to those the ACLU cited.
A targeted killing must be “required to protect life,” Alston wrote in the 29-page report, with “no other means, such as capture or nonlethal incapacitation, of preventing the threat to life.” In addition, a government must have reliable information and intelligence to support the targeting decision and to minimize risk to civilians. And, significantly, Alston set out detailed rules of transparency and accountability. States should lay out the claimed basis for targeted killings, the procedural rules followed and after-action procedures to monitor compliance, he said.
Benjamin Wittes, the Brookings Institution scholar who has followed the war on terror for a decade, proposed somewhat similar criteria for judging targeted killings under the Constitution’s Due Process Clause. On the national security blog Lawfare, Wittes said the target must be “identified with a high degree of confidence” and pose “an unreasonable risk to human life” with “no option for capture.” Surveying the information known about Awlaki, Wittes concludes the government’s action met that test.
Wittes omitted one essential requirement from Alston’s list: transparency. Many Americans, and many others around the world, have well reasoned concerns about the U.S. action. Those concerns cannot be addressed by victory statements from White House lecterns. A decent respect for the opinions of mankind demands that all the facts be laid out for Americans and the world to judge.
What was true then is true today. The United States’ national identity demands that its actions, at home and abroad, satisfy in some sense “the opinions of mankind,” both at home and abroad. So the Obama administration owes it to Americans and the rest of the world to lay out in detail its case for the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader, in a missile strike by a CIA-controlled drone aircraft in the Yemeni desert last week [Sept. 30].
Much is known about Awlaki (sometimes spelled “Aulaqi”), and much of the information is from the U.S. government. But some of what is “known” is only asserted. And some of the unsubstantiated assertions are critical in determining whether the killing of Awlaki satisfies what may be or should be the requirements of U.S. and international law.
Awlaki was born in New Mexico in 1971 and later educated in the United States after growing up in his father’s native Yemen. He was a Muslim imam of seemingly moderate views in several cities, including the Washington, D.C., area, before adopting radical Islamist doctrines that he has espoused on the Internet for nearly a decade. He was, in no uncertain terms, someone who wished the United States ill and someone who actively encouraged others to take up jihad against the United States.
In announcing Awlaki’s death, President Obama identified him as “the leader of external operations for al Qaeda in the Arabian Peninsula.” In that role, Obama said, Awlaki “took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.”
As of this writing, the evidence to back up the most specific of those charges has not been made public. Awlaki acknowledged in an interview early last year that he knew and taught Umar Farouk Abdulmutallab, the so-called “underwear bomber” in the failed 2009 aircraft bombing. But Awlaki claimed that he did not direct Abdulmutallab to carry out the attack. The British press have reported on e-mails linking Awlaki to efforts to circumvent airport security procedures in the United Kingdom. But the evidence disclosed so far appears short of proving an operational role in the foiled October 2010 plot to place bombs aboard U.S.-bound cargo planes.
Awlaki was reported more than a year ago to have been placed on a list of terrorists targeted to be captured or killed. Representing Awlaki’s father, the American Civil Liberties Union filed a federal court suit in August 2010 contesting the designation or, at the least, requiring the government to justify the decision. “Both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats,” the ACLU argued.
The government responded by filing a document showing the procedures used for targeted drone strikes but without any specific information about Awlaki. In December, Judge John Bates dismissed the lawsuit. Bates said that Awlaki’s father lacked standing to bring the action and that the suit in any event raised a political question ill suited for courts to decide.
The ACLU’s arguments were just that: arguments. Neither U.S. nor international law can be said to have a settled position on the rules applicable to targeted killings outside an active combat zone. But in his role as the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, the U.S. law professor Philip Alston laid out criteria in a May 2010 report comparable to those the ACLU cited.
A targeted killing must be “required to protect life,” Alston wrote in the 29-page report, with “no other means, such as capture or nonlethal incapacitation, of preventing the threat to life.” In addition, a government must have reliable information and intelligence to support the targeting decision and to minimize risk to civilians. And, significantly, Alston set out detailed rules of transparency and accountability. States should lay out the claimed basis for targeted killings, the procedural rules followed and after-action procedures to monitor compliance, he said.
Benjamin Wittes, the Brookings Institution scholar who has followed the war on terror for a decade, proposed somewhat similar criteria for judging targeted killings under the Constitution’s Due Process Clause. On the national security blog Lawfare, Wittes said the target must be “identified with a high degree of confidence” and pose “an unreasonable risk to human life” with “no option for capture.” Surveying the information known about Awlaki, Wittes concludes the government’s action met that test.
Wittes omitted one essential requirement from Alston’s list: transparency. Many Americans, and many others around the world, have well reasoned concerns about the U.S. action. Those concerns cannot be addressed by victory statements from White House lecterns. A decent respect for the opinions of mankind demands that all the facts be laid out for Americans and the world to judge.
Monday, September 26, 2011
Troy Davis' Unconvincing Case for Actual Innocence
Troy Davis very probably shot and killed Mark MacPhail, a Savannah, Ga., police officer, in the early morning hours of Aug. 19, 1989, as MacPhail went to the aid of a homeless man being assaulted by Davis and two friends.
That is the conclusion a dispassionate reader is quite likely to reach after reading the 172-page opinion by U.S. District Court Judge William T. Moore Jr. rejecting Davis’s claim of actual innocence of the murder for which he was convicted 20 years earlier.
Davis’s actual-innocence claim drew nationwide attention and many thoughtful supporters during a long legal battle that ended with his execution by lethal injection late Wednesday evening [Sept. 21]. Now, many critics and opponents of capital punishment are hoping Davis’s case will get Americans to take a new look at the doubts about the way the death penalty is administered in the United States.
Those doubts are familiar and well grounded. The death penalty is arbitrarily imposed, typically on the poor and virtually always on defendants with less than fully adequate legal representation. And there is the possibility that a wrongful conviction will lead to the execution of an innocent person.
Davis’s case, however, adds little to most of these arguments, including the actual-innocence issue. The killing of a police officer — MacPhail was in uniform, moonlighting as a security guard — is one “special circumstance” that death penalty states use to define capital murder. The four-day trial and two-hour deliberation by a racially mixed jury were quicker, and the Georgia Supreme Court’s decision affirming the conviction and sentence shorter, than typical in other states. But no patent unfairness or constitutional error leaps out from the account of the trial and state appeal.
Beginning in 1994, Davis and a succession of post-conviction lawyers waged a habeas corpus battle in state and then in federal court to gain a new trial by proving his innocence through newly gathered evidence. Two appellate courts, the Georgia Supreme Court and the Eleventh U.S. Circuit Court of Appeals, denied Davis a full hearing on the new evidence. When Davis filed an original habeas corpus petition with the U.S. Supreme Court, however, the justices took the extraordinary step of transferring the case to a federal district court judge for a full hearing. Dissenting, Justice Antonin Scalia said the court had done no such thing in the past 50 years.
Moore was a Jimmy Carter-appointed U.S. attorney for four years before being appointed to the federal bench in 1994 by another Democratic president, Bill Clinton. He presided over a two-day hearing on Davis’s new evidence in June 2010. He gave Davis two favorable rulings on unsettled legal issues. First, Moore held squarely that the Constitution bars the execution of someone who can make a clear and convincing demonstration of actual innocence. Second, Moore held that a federal habeas court can re-evaluate an actual-innocence claim already considered by a state court.
After carefully laying out the new evidence, however, Moore rejected it as “largely smoke and mirrors.” The supposed recantations by seven witnesses were “largely not credible or lacking in probative value,” he wrote in the opinion filed two months after the hearing. “The vast majority” of trial evidence, Moore said, “remains intact.”
To be clear, Davis — age 21 at the time and known by the street name “Rough as Hell” — acknowledged on the stand being one of three men involved in the beating that MacPhail moved to break up. The only issue at trial was whether Davis or his friend, Sylvester “Red” Coles, shot and killed MacPhail as they fled the scene. The witnesses’ accounts pointed to Davis, not Coles, based in part on the clothes each was wearing.
The accounts of the witnesses’ identifications and statements do not indicate suggestive procedures used by police. The victim of the beating, Larry Young, could not – and did not -- identify Davis as his assailant. The witnesses who did identify Davis as the shooter appear to have testified at trial without embellishing their accounts with newfound certainty. And the prosecution also had evidence of a statement Davis allegedly made to a friend that day confessing that he had shot MacPhail because the officer had seen his face and could identify him later.
The recantations that Davis’s supporters emphasized in the days before the execution crumble under Moore’s examination. Of the seven witnesses, two did not actually say that they had lied in court. Two who had submitted affidavits, including Young, were not called as witnesses at the hearing. And two others Moore found simply unbelievable, including the friend who tried to retract his account of Davis’s confession. Moore accepted only one recantation: the jailhouse snitch who claimed that Davis confessed to the shooting. But Moore said the trial testimony was clearly fabricated — in effect, unlikely to have been a factor in the jury’s verdict.
Jurors are told that a conviction requires proof beyond a reasonable doubt, but not beyond any doubt whatsoever. On that standard, the jury’s verdict appears valid, and Moore appears on solid ground in finding the new evidence insufficient to conclude that no rational juror would have convicted Davis with all the information available.
Supporters of capital punishment believe that standard is good enough for administering the ultimate sanction, even at the risk that some concede of executing an innocent person. Some number of innocent people have surely been executed in the United States. But Troy Davis is probably not one of them.
That is the conclusion a dispassionate reader is quite likely to reach after reading the 172-page opinion by U.S. District Court Judge William T. Moore Jr. rejecting Davis’s claim of actual innocence of the murder for which he was convicted 20 years earlier.
Davis’s actual-innocence claim drew nationwide attention and many thoughtful supporters during a long legal battle that ended with his execution by lethal injection late Wednesday evening [Sept. 21]. Now, many critics and opponents of capital punishment are hoping Davis’s case will get Americans to take a new look at the doubts about the way the death penalty is administered in the United States.
Those doubts are familiar and well grounded. The death penalty is arbitrarily imposed, typically on the poor and virtually always on defendants with less than fully adequate legal representation. And there is the possibility that a wrongful conviction will lead to the execution of an innocent person.
Davis’s case, however, adds little to most of these arguments, including the actual-innocence issue. The killing of a police officer — MacPhail was in uniform, moonlighting as a security guard — is one “special circumstance” that death penalty states use to define capital murder. The four-day trial and two-hour deliberation by a racially mixed jury were quicker, and the Georgia Supreme Court’s decision affirming the conviction and sentence shorter, than typical in other states. But no patent unfairness or constitutional error leaps out from the account of the trial and state appeal.
Beginning in 1994, Davis and a succession of post-conviction lawyers waged a habeas corpus battle in state and then in federal court to gain a new trial by proving his innocence through newly gathered evidence. Two appellate courts, the Georgia Supreme Court and the Eleventh U.S. Circuit Court of Appeals, denied Davis a full hearing on the new evidence. When Davis filed an original habeas corpus petition with the U.S. Supreme Court, however, the justices took the extraordinary step of transferring the case to a federal district court judge for a full hearing. Dissenting, Justice Antonin Scalia said the court had done no such thing in the past 50 years.
Moore was a Jimmy Carter-appointed U.S. attorney for four years before being appointed to the federal bench in 1994 by another Democratic president, Bill Clinton. He presided over a two-day hearing on Davis’s new evidence in June 2010. He gave Davis two favorable rulings on unsettled legal issues. First, Moore held squarely that the Constitution bars the execution of someone who can make a clear and convincing demonstration of actual innocence. Second, Moore held that a federal habeas court can re-evaluate an actual-innocence claim already considered by a state court.
After carefully laying out the new evidence, however, Moore rejected it as “largely smoke and mirrors.” The supposed recantations by seven witnesses were “largely not credible or lacking in probative value,” he wrote in the opinion filed two months after the hearing. “The vast majority” of trial evidence, Moore said, “remains intact.”
To be clear, Davis — age 21 at the time and known by the street name “Rough as Hell” — acknowledged on the stand being one of three men involved in the beating that MacPhail moved to break up. The only issue at trial was whether Davis or his friend, Sylvester “Red” Coles, shot and killed MacPhail as they fled the scene. The witnesses’ accounts pointed to Davis, not Coles, based in part on the clothes each was wearing.
The accounts of the witnesses’ identifications and statements do not indicate suggestive procedures used by police. The victim of the beating, Larry Young, could not – and did not -- identify Davis as his assailant. The witnesses who did identify Davis as the shooter appear to have testified at trial without embellishing their accounts with newfound certainty. And the prosecution also had evidence of a statement Davis allegedly made to a friend that day confessing that he had shot MacPhail because the officer had seen his face and could identify him later.
The recantations that Davis’s supporters emphasized in the days before the execution crumble under Moore’s examination. Of the seven witnesses, two did not actually say that they had lied in court. Two who had submitted affidavits, including Young, were not called as witnesses at the hearing. And two others Moore found simply unbelievable, including the friend who tried to retract his account of Davis’s confession. Moore accepted only one recantation: the jailhouse snitch who claimed that Davis confessed to the shooting. But Moore said the trial testimony was clearly fabricated — in effect, unlikely to have been a factor in the jury’s verdict.
Jurors are told that a conviction requires proof beyond a reasonable doubt, but not beyond any doubt whatsoever. On that standard, the jury’s verdict appears valid, and Moore appears on solid ground in finding the new evidence insufficient to conclude that no rational juror would have convicted Davis with all the information available.
Supporters of capital punishment believe that standard is good enough for administering the ultimate sanction, even at the risk that some concede of executing an innocent person. Some number of innocent people have surely been executed in the United States. But Troy Davis is probably not one of them.
Monday, September 19, 2011
House Lawyers Are Camera-Shy in DOMA Case
House Republicans could not get to the microphones and e-mail blasts fast enough after the Obama administration announced in February that it would no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA). House Speaker John Boehner denounced the move as “pandering” and immediately raised the possibility of the House intervening in litigation to defend the 1996 law, which denies federal benefits to same-sex couples.
Boehner made good on his plan by winning party-line approval for the House Bipartisan Legal Advisory Group to intervene in suits challenging DOMA, including one in California by a federal court employee seeking health coverage for her legally married wife equal to that available to married opposite-sex couples. But the House’s legal team apparently is less eager than Boehner was in February to call attention to its defense of the law.
In a Sept. 9 filing, House general counsel Kerry Kircher put the kibosh on video recording the next hearing in the case, scheduled for Oct. 21 before U.S. District Court Judge Jeffrey S. White in San Francisco. “Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully advises that it prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” Kircher wrote in a two-sentence memorandum, posted here on the web site of the gay publication Metro Weekly. “Accordingly Intervenor-Defendant declines to consent.”
The move drew immediate criticism from House Minority Leader Nancy Pelosi as well as the gay rights group representing Karen Golinski in the case, Golinski v. U.S. Office of Personnel Management, 3:10-cv-0257-JSW. “It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination," Tara Borelli, a staff lawyer with Lambda Legal, said in a prepared statement.
Pelosi, a Democrat from San Francisco, was not informed of the House move in advance, according to her spokesman, Drew Hammill. “Leader Pelosi strongly supports transparency,” Hammill told Metro Weekly, “but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side.” Boehner’s office did not respond to a request for comment, the newspaper said.
The move reflects not only on the House Republican leadership but also on the federal judiciary for its tentative move toward opening the courts to 21st-century style coverage of proceedings. Judge White opened the issue because his is one of the courts participating in a pilot program for camera coverage authorized by the U.S. Judicial Conference in September 2010.
Open-access advocates applauded the decision, but with one hand behind their back because of its many limitations. The pilot project was to extend only to courts whose judges volunteered to participate. It would apply only to civil cases; a federal statute bars either audio or video coverage of criminal trials and hearings. And even civil cases could be recorded, broadcast, or streamed only if all parties to the case agreed.
The dual-consent requirement was presumably intended to protect the privacy of private civil litigants. The government’s interest — or in this case the House of Representatives’ interest — in limiting the public’s opportunity to see or hear a proceeding challenging a federal law is hard, if not impossible, to discern.
The various limitations in the pilot project appear to have been essential, however, to winning approval from the Judicial Conference, the federal judiciary’s policymaking arm. The federal courts had conducted a pilot project for broadcast coverage of appellate proceedings in the early 1990s. The Federal Judicial Center, the conference’s research arm, officially pronounced the experiment a success, but the conference let it die in 1996.
The impetus for the new experiment came in part from Congress, which over the years indicated increasing interest in legislation to mandate radio or TV coverage of federal courts. Judge John Tunheim, a federal judge in Minneapolis who formerly headed the conference’s committee on court administration and management, told me earlier this year that he had worked with others in drafting rules for broadcast coverage just in case Congress acted.
A second push for action came from the Ninth U.S. Circuit Court of Appeals, which gave a green light to plans for Internet streaming of the federal court trial in early 2010 of the challenge to California’s anti-gay marriage Proposition 8. The Supreme Court squelched that plan, however, by ruling that Judge Vaughn Walker had not followed proper procedure in amending local court rules to permit the plan.
Federal judges in California have also been prime movers in Golinski’s challenge to DOMA. Golinski, a Ninth Circuit employee, married Amy Cunninghis in California during the six-month window between the California Supreme Court’s decision recognizing same-sex marriages and passage of Proposition 8 in November 2008. In September 2008, she submitted an application to enroll Cunninghis under the court’s health insurance plan. Chief Judge Alex Kozinski approved the application, but the Office of Personnel Management refused, forcing Golinski to sue.
The Justice Department filed a brief in July 2011 arguing that DOMA is unconstitutional. The House’s camera-shy lawyers will have their own arguments to make in the October hearing. But anyone interested will have to go to San Francisco to watch or wait for a printed account to read what they had to say.
Boehner made good on his plan by winning party-line approval for the House Bipartisan Legal Advisory Group to intervene in suits challenging DOMA, including one in California by a federal court employee seeking health coverage for her legally married wife equal to that available to married opposite-sex couples. But the House’s legal team apparently is less eager than Boehner was in February to call attention to its defense of the law.
In a Sept. 9 filing, House general counsel Kerry Kircher put the kibosh on video recording the next hearing in the case, scheduled for Oct. 21 before U.S. District Court Judge Jeffrey S. White in San Francisco. “Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully advises that it prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” Kircher wrote in a two-sentence memorandum, posted here on the web site of the gay publication Metro Weekly. “Accordingly Intervenor-Defendant declines to consent.”
The move drew immediate criticism from House Minority Leader Nancy Pelosi as well as the gay rights group representing Karen Golinski in the case, Golinski v. U.S. Office of Personnel Management, 3:10-cv-0257-JSW. “It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination," Tara Borelli, a staff lawyer with Lambda Legal, said in a prepared statement.
Pelosi, a Democrat from San Francisco, was not informed of the House move in advance, according to her spokesman, Drew Hammill. “Leader Pelosi strongly supports transparency,” Hammill told Metro Weekly, “but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side.” Boehner’s office did not respond to a request for comment, the newspaper said.
The move reflects not only on the House Republican leadership but also on the federal judiciary for its tentative move toward opening the courts to 21st-century style coverage of proceedings. Judge White opened the issue because his is one of the courts participating in a pilot program for camera coverage authorized by the U.S. Judicial Conference in September 2010.
Open-access advocates applauded the decision, but with one hand behind their back because of its many limitations. The pilot project was to extend only to courts whose judges volunteered to participate. It would apply only to civil cases; a federal statute bars either audio or video coverage of criminal trials and hearings. And even civil cases could be recorded, broadcast, or streamed only if all parties to the case agreed.
The dual-consent requirement was presumably intended to protect the privacy of private civil litigants. The government’s interest — or in this case the House of Representatives’ interest — in limiting the public’s opportunity to see or hear a proceeding challenging a federal law is hard, if not impossible, to discern.
The various limitations in the pilot project appear to have been essential, however, to winning approval from the Judicial Conference, the federal judiciary’s policymaking arm. The federal courts had conducted a pilot project for broadcast coverage of appellate proceedings in the early 1990s. The Federal Judicial Center, the conference’s research arm, officially pronounced the experiment a success, but the conference let it die in 1996.
The impetus for the new experiment came in part from Congress, which over the years indicated increasing interest in legislation to mandate radio or TV coverage of federal courts. Judge John Tunheim, a federal judge in Minneapolis who formerly headed the conference’s committee on court administration and management, told me earlier this year that he had worked with others in drafting rules for broadcast coverage just in case Congress acted.
A second push for action came from the Ninth U.S. Circuit Court of Appeals, which gave a green light to plans for Internet streaming of the federal court trial in early 2010 of the challenge to California’s anti-gay marriage Proposition 8. The Supreme Court squelched that plan, however, by ruling that Judge Vaughn Walker had not followed proper procedure in amending local court rules to permit the plan.
Federal judges in California have also been prime movers in Golinski’s challenge to DOMA. Golinski, a Ninth Circuit employee, married Amy Cunninghis in California during the six-month window between the California Supreme Court’s decision recognizing same-sex marriages and passage of Proposition 8 in November 2008. In September 2008, she submitted an application to enroll Cunninghis under the court’s health insurance plan. Chief Judge Alex Kozinski approved the application, but the Office of Personnel Management refused, forcing Golinski to sue.
The Justice Department filed a brief in July 2011 arguing that DOMA is unconstitutional. The House’s camera-shy lawyers will have their own arguments to make in the October hearing. But anyone interested will have to go to San Francisco to watch or wait for a printed account to read what they had to say.
Monday, September 12, 2011
California's Prop. 8 Entitled to Its Day in Court
As California’s secretary of state, Jerry Brown helped draft and win overwhelming voter approval of a far-reaching initiative in June 1974 requiring disclosure of campaign spending in state races and establishing conflict-of-interest restrictions on state and local officeholders. Brown’s support for Proposition 9 helped win nomination on the same day as the Democratic candidate for governor and in November a narrow victory over the Republican candidate.
Imagine, however, that modern-day Republicans who see constitutional flaws in virtually any campaign finance regulations had won the state races for governor and attorney general in November 1974. And imagine further that in litigation over the initiative, a federal judge had ruled Proposition 9 unconstitutional and that the hypothetical governor and attorney general – who had opposed the measure all along -- then chose not to appeal the ruling.
Under that scenario, would the official sponsors of the ballot initiative have standing to appeal the ruling, hoping to reverse it or at least to get a definitive decision? If not, wouldn’t the state officials who refused to appeal the ruling have succeeded in nullifying the will of the people of California in passing the initiative?
Fast forward four decades, and that is the legal question now pending before the California Supreme Court on the litigation over Proposition 8, the 2008 ballot initiative that bars marriage rights for same-sex couples. Brown, now back in the governor’s office, and a Democratic attorney general, Kamala Harris, are declining to appeal a federal judge’s ruling that the anti-gay marriage initiative violates federal constitutional rights. The official sponsors of the ballot measure, ProtectMarriage.com and the organization’s leaders, responded by seeking to appeal in place of the state officials. And the Ninth U.S. Circuit Court of Appeals decided that it needs the California high court to say whether, as a matter of state law, a ballot initiative sponsor has legal standing to do so.
From all that appears from the arguments in the case last week [Sept. 6], the California court is inclined to say yes. Among the seven justices, a majority appeared ready to rule that safeguarding what the court has previously called the “precious” right of initiative requires recognizing the right of the initiative’s sponsors to defend it in court if state officials refuse.
Leaving an initiative with no one to defend would amount to “nullifying the great power that the people have reserved for themselves,” remarked Justice Joyce Kennard, one of the court’s liberals. Conservative Justice Ming W. Chin similarly saw a threat to the initiative process if state officials could acquiesce in judicial rulings to strike down ballot measures. “So the attorney general and the governor get to pick the laws they want to enforce?” he asked. The Chief Justice, Tani Cantil-Sakauye, appointed at the start of the year, warned in like vein that the initiative process would be “illusory” if ballot measure sponsors could not step in to ensure a full defense in court.
The oral arguments and friend-of-the-court briefs in the case, Perry v. Brown, featured a reversal of traditional ideological positions on legal standing. Conservative groups typically thought of as opposed to expansive views of legal standing argued in favor of the anti-gay marriage group’s right to appeal the earlier ruling, while groups ordinarily thought of as liberal, including the League of Women Voters and gay rights’ organizations, argued against standing.
The Ninth Circuit felt obliged to ask for advice because neither the California nor U.S. Supreme Court has definitively answered the question up to now. The U.S. Supreme Court, in a New Jersey case, did recognize the right of state legislators to defend a state law when executive officials refuse, but based the ruling on the particulars of New Jersey law (Karcher v. May, 1987). A decade later, the court indicated “grave doubt” whether sponsors of an Arizona ballot measure could defend it in court, but dismissed the case as moot without reaching a definite conclusion (Arizonans for Official English v. Arizona, 1997).
In California, state courts have traditionally been liberal in allowing ballot measure sponsors to intervene in litigation without specifying the exact basis for doing so. “This issue has never come up definitively in our jurisprudence,” remarked Justice Goodwin Liu, who was confirmed to his post only a few days earlier after his nomination to the Ninth Circuit was thwarted by Republican opposition.
Liu suggested, however, that the California court’s ruling on the state law issue may not be determinative for the Ninth Circuit. That’s because federal courts have interpreted the “case or controversy” requirement of Article III of the U.S. Constitution somewhat strictly. Even after getting an answer from the California court, the Ninth Circuit could rule that with no state officials to defend Proposition 8, there is no longer a live controversy for federal courts to consider.
Gay rights groups might understandably hope for a ruling that blocks any further appeal and wipes Proposition 8 off the books. As Kennard remarked, however, the state court’s ruling will not be limited to gay issues. The initiative process has been much abused in recent decades, in California and elsewhere. But it remains a potentially valuable safeguard for the people against unresponsive and unaccountable government. There is little to be lost, and much to gain, in making sure that once enacted, a popularly approved ballot initiative gets its day in court, at every level, until a final resolution.
Imagine, however, that modern-day Republicans who see constitutional flaws in virtually any campaign finance regulations had won the state races for governor and attorney general in November 1974. And imagine further that in litigation over the initiative, a federal judge had ruled Proposition 9 unconstitutional and that the hypothetical governor and attorney general – who had opposed the measure all along -- then chose not to appeal the ruling.
Under that scenario, would the official sponsors of the ballot initiative have standing to appeal the ruling, hoping to reverse it or at least to get a definitive decision? If not, wouldn’t the state officials who refused to appeal the ruling have succeeded in nullifying the will of the people of California in passing the initiative?
Fast forward four decades, and that is the legal question now pending before the California Supreme Court on the litigation over Proposition 8, the 2008 ballot initiative that bars marriage rights for same-sex couples. Brown, now back in the governor’s office, and a Democratic attorney general, Kamala Harris, are declining to appeal a federal judge’s ruling that the anti-gay marriage initiative violates federal constitutional rights. The official sponsors of the ballot measure, ProtectMarriage.com and the organization’s leaders, responded by seeking to appeal in place of the state officials. And the Ninth U.S. Circuit Court of Appeals decided that it needs the California high court to say whether, as a matter of state law, a ballot initiative sponsor has legal standing to do so.
From all that appears from the arguments in the case last week [Sept. 6], the California court is inclined to say yes. Among the seven justices, a majority appeared ready to rule that safeguarding what the court has previously called the “precious” right of initiative requires recognizing the right of the initiative’s sponsors to defend it in court if state officials refuse.
Leaving an initiative with no one to defend would amount to “nullifying the great power that the people have reserved for themselves,” remarked Justice Joyce Kennard, one of the court’s liberals. Conservative Justice Ming W. Chin similarly saw a threat to the initiative process if state officials could acquiesce in judicial rulings to strike down ballot measures. “So the attorney general and the governor get to pick the laws they want to enforce?” he asked. The Chief Justice, Tani Cantil-Sakauye, appointed at the start of the year, warned in like vein that the initiative process would be “illusory” if ballot measure sponsors could not step in to ensure a full defense in court.
The oral arguments and friend-of-the-court briefs in the case, Perry v. Brown, featured a reversal of traditional ideological positions on legal standing. Conservative groups typically thought of as opposed to expansive views of legal standing argued in favor of the anti-gay marriage group’s right to appeal the earlier ruling, while groups ordinarily thought of as liberal, including the League of Women Voters and gay rights’ organizations, argued against standing.
The Ninth Circuit felt obliged to ask for advice because neither the California nor U.S. Supreme Court has definitively answered the question up to now. The U.S. Supreme Court, in a New Jersey case, did recognize the right of state legislators to defend a state law when executive officials refuse, but based the ruling on the particulars of New Jersey law (Karcher v. May, 1987). A decade later, the court indicated “grave doubt” whether sponsors of an Arizona ballot measure could defend it in court, but dismissed the case as moot without reaching a definite conclusion (Arizonans for Official English v. Arizona, 1997).
In California, state courts have traditionally been liberal in allowing ballot measure sponsors to intervene in litigation without specifying the exact basis for doing so. “This issue has never come up definitively in our jurisprudence,” remarked Justice Goodwin Liu, who was confirmed to his post only a few days earlier after his nomination to the Ninth Circuit was thwarted by Republican opposition.
Liu suggested, however, that the California court’s ruling on the state law issue may not be determinative for the Ninth Circuit. That’s because federal courts have interpreted the “case or controversy” requirement of Article III of the U.S. Constitution somewhat strictly. Even after getting an answer from the California court, the Ninth Circuit could rule that with no state officials to defend Proposition 8, there is no longer a live controversy for federal courts to consider.
Gay rights groups might understandably hope for a ruling that blocks any further appeal and wipes Proposition 8 off the books. As Kennard remarked, however, the state court’s ruling will not be limited to gay issues. The initiative process has been much abused in recent decades, in California and elsewhere. But it remains a potentially valuable safeguard for the people against unresponsive and unaccountable government. There is little to be lost, and much to gain, in making sure that once enacted, a popularly approved ballot initiative gets its day in court, at every level, until a final resolution.
Monday, September 5, 2011
9/11: Never Forget . . . But What to Remember?
Walter Masterson was on a conference call in the World Trade Center’s Building 5 when the first hijacked plane hit on Sept. 11, 2001. He got out of the building and, disconcerted, had to be directed by a police officer to get to safety. For the next two weeks, Masterson recalls, New Yorkers were on their best behavior. “Rudeness vanished,” he says. “Everybody helped. Nobody wanted for anything.”
As it was in New York, so it was in the rest of the country. Forget where you were on September 11. Remember instead how you felt for the next two weeks or so. Americans were as one in solemn mourning and steely resolve. We knew the enemy: Al Qaeda. We knew where it was: Afghanistan. We knew what to do: go to war, with might and right on our side.
Then things went wrong, terribly wrong in many respects.
At the direction of Attorney General John Ashcroft, federal agents began rounding up a total of 762 young men from the Middle East or Pakistan using immigration laws as the pretext to justify ethnic and religious profiling. Later, the Justice Department’s inspector general chastised the government for holding many of the immigrants in punitive conditions, often with delayed access either to family members or lawyers. Few if any useful leads to Al Qaeda were found, but the dragnet helped justify anti-Muslim sentiment among the public at large that, sadly, persists a decade later.
Meanwhile, President Bush and Congress were rushing to imperil civil liberties with a law called the USA Patriot Act to obscure its un-American provisions. Enacted barely six weeks after 9/11, the law gave the feds carte blanche to use “national security” to justify rummaging through library records, phone calls, and e-mails with less than the probable cause standard that the Framers wrote into the Fourth Amendment. Separately, Bush issued a secret executive order expanding the government’s authority under the Foreign Intelligence Surveillance Act to tap into electronic communications, even those of U.S. citizens.
A decade later, the Patriot Act has been renewed twice, admittedly with some ameliorating changes, and Bush’s foreign intelligence surveillance program has been continued, again with some helpful restrictions. The government says these law enforcement tools have been essential to the war on terror, but detailed studies — notably, this report by the Breakthrough Institute, a progressive think tank in California — have found no evidence that the controversial tactics have played any significant role in thwarting terrorist plots.
The war in Afghanistan went well: the Taliban displaced, a pro-Western democrat installed as interim leader, U.S. aid for reconstruction promised. Behind the scenes, however, the Bush White House, abetted by presidential power partisans in the vice president’s office and the Justice Department, were hatching plans to put the United States on the wrong side of the law of war. “Enemy combatants” rounded up in a difficult-to-define battlefield were to be transported to the U.S. naval base at Guantanamo Bay, Cuba, chosen precisely because it was thought to be outside the reach of U.S. courts: a law-free zone.
The administration claimed the power to hold foreigners and even U.S. citizens with no hearing whatsoever. It denied any obligation to treat the Guantanamo prisoners according to the terms of the Geneva Conventions. And, most shockingly, it claimed the right to interrogate “high-value” Al Qaeda suspects in secret prisons using techniques such as forced isolation, sleep deprivation, stress positions, and waterboarding that amounted to torture.
The Justice Department unpersuasively denied that the “enhanced interrogation techniques” were torture. In any event, the department argued in an opinion later repudiated, the president had power as commander in chief to order the use of torture, laws to the contrary notwithstanding.
Then came the war on Iraq, entered into divisively on a dubious rationale supported by dubious evidence. The war drained resources from Afghanistan and made it harder to keep the support of the world’s Muslim communities in the just and necessary fight against Al Qaeda. And the war drained resources from domestic needs, helping put the country into a huge fiscal hole.
There were other mistakes, perhaps more understandable. More money was spent on homeland security than necessary — $75 billion per year in state and federal spending, according to one estimate — but that can happen to well-intentioned government programs. Some 9/11 victims or survivors — first responders with serious injuries or debilitating illnesses — have had to work too hard to get compensation, but that too can happen when the government tries to dispense mass justice.
Those other mistakes, however, could have been avoided. Indeed, the other branches of government tried. The Supreme Court forced the administration to recognize the Geneva Conventions and to allow judicial review at Guantanamo. Congress outlawed the enhanced interrogation techniques — after Bush had given them up — and smoothed the edges a bit on the Patriot Act and foreign intelligence surveillance.
Apart from those changes, however, President Obama has done less than he had promised to get the United States back to its values in combating terrorism. So on this tenth anniversary we perhaps can best honor 9/11’s victims by remembering how the country lost its way afterward and by vowing not to let it happen again.
As it was in New York, so it was in the rest of the country. Forget where you were on September 11. Remember instead how you felt for the next two weeks or so. Americans were as one in solemn mourning and steely resolve. We knew the enemy: Al Qaeda. We knew where it was: Afghanistan. We knew what to do: go to war, with might and right on our side.
Then things went wrong, terribly wrong in many respects.
At the direction of Attorney General John Ashcroft, federal agents began rounding up a total of 762 young men from the Middle East or Pakistan using immigration laws as the pretext to justify ethnic and religious profiling. Later, the Justice Department’s inspector general chastised the government for holding many of the immigrants in punitive conditions, often with delayed access either to family members or lawyers. Few if any useful leads to Al Qaeda were found, but the dragnet helped justify anti-Muslim sentiment among the public at large that, sadly, persists a decade later.
Meanwhile, President Bush and Congress were rushing to imperil civil liberties with a law called the USA Patriot Act to obscure its un-American provisions. Enacted barely six weeks after 9/11, the law gave the feds carte blanche to use “national security” to justify rummaging through library records, phone calls, and e-mails with less than the probable cause standard that the Framers wrote into the Fourth Amendment. Separately, Bush issued a secret executive order expanding the government’s authority under the Foreign Intelligence Surveillance Act to tap into electronic communications, even those of U.S. citizens.
A decade later, the Patriot Act has been renewed twice, admittedly with some ameliorating changes, and Bush’s foreign intelligence surveillance program has been continued, again with some helpful restrictions. The government says these law enforcement tools have been essential to the war on terror, but detailed studies — notably, this report by the Breakthrough Institute, a progressive think tank in California — have found no evidence that the controversial tactics have played any significant role in thwarting terrorist plots.
The war in Afghanistan went well: the Taliban displaced, a pro-Western democrat installed as interim leader, U.S. aid for reconstruction promised. Behind the scenes, however, the Bush White House, abetted by presidential power partisans in the vice president’s office and the Justice Department, were hatching plans to put the United States on the wrong side of the law of war. “Enemy combatants” rounded up in a difficult-to-define battlefield were to be transported to the U.S. naval base at Guantanamo Bay, Cuba, chosen precisely because it was thought to be outside the reach of U.S. courts: a law-free zone.
The administration claimed the power to hold foreigners and even U.S. citizens with no hearing whatsoever. It denied any obligation to treat the Guantanamo prisoners according to the terms of the Geneva Conventions. And, most shockingly, it claimed the right to interrogate “high-value” Al Qaeda suspects in secret prisons using techniques such as forced isolation, sleep deprivation, stress positions, and waterboarding that amounted to torture.
The Justice Department unpersuasively denied that the “enhanced interrogation techniques” were torture. In any event, the department argued in an opinion later repudiated, the president had power as commander in chief to order the use of torture, laws to the contrary notwithstanding.
Then came the war on Iraq, entered into divisively on a dubious rationale supported by dubious evidence. The war drained resources from Afghanistan and made it harder to keep the support of the world’s Muslim communities in the just and necessary fight against Al Qaeda. And the war drained resources from domestic needs, helping put the country into a huge fiscal hole.
There were other mistakes, perhaps more understandable. More money was spent on homeland security than necessary — $75 billion per year in state and federal spending, according to one estimate — but that can happen to well-intentioned government programs. Some 9/11 victims or survivors — first responders with serious injuries or debilitating illnesses — have had to work too hard to get compensation, but that too can happen when the government tries to dispense mass justice.
Those other mistakes, however, could have been avoided. Indeed, the other branches of government tried. The Supreme Court forced the administration to recognize the Geneva Conventions and to allow judicial review at Guantanamo. Congress outlawed the enhanced interrogation techniques — after Bush had given them up — and smoothed the edges a bit on the Patriot Act and foreign intelligence surveillance.
Apart from those changes, however, President Obama has done less than he had promised to get the United States back to its values in combating terrorism. So on this tenth anniversary we perhaps can best honor 9/11’s victims by remembering how the country lost its way afterward and by vowing not to let it happen again.
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