It seemed like a good idea at the time: trying Khalid Sheikh Mohammed and four other alleged 9/11 conspirators in a federal court in New York City. Let’s give the “worst of the worst” the best of American justice, only blocks away from Ground Zero.
But the Obama administration is retreating from the decision to hold KSM’s trial in Lower Manhattan after New York City Mayor Michael Bloomberg, who had originally supported the plan, changed his mind. Bloomberg told reporters on Wednesday [Jan. 27] that a trial expected to last months if not years would disrupt the city, damage its economy, and cost up to $1 billion in security.
The White House initially stood its ground, but for less than 48 hours. By Friday, aides were saying the trial, scheduled to begin in September, would be moved — to a location yet to be determined. New York officials were relieved.
The relocation, however, leaves in place the more fundamental decision — also drawing increased criticism — to try the self-confessed architect of the 9/11 attacks in a civilian court instead of a military tribunals. For the most part, the issue pits a Democratic administration against Republicans in Congress and national security-minded advocacy groups against civil liberties organizations. But doubts raised by some less ideological experts and even some liberals suggest that the question deserves careful consideration without being cast as a litmus test on the administration or the U.S. Constitution.
Attorney General Eric H. Holder Jr. sought to explain the decision in non-ideological terms in his prepared statement before the Senate Judiciary Committee on Nov. 18, a week after announcing the plan. KSM could be tried in a civilian court or a military commission, Holder said. He made the decision as a prosecutor, the attorney general said, based on “where the government will have the greatest opportunity to present the strongest case in the best forum.”
As he went beyond his prepared statement, Holder tried to reassure GOP senators about the risk of an acquittal. “Failure is not an option,” Holder said. The reassurance did little to neutralize criticism from the right but provoked tut-tuts from some nonpartisan experts about the apparent assumption of a predetermined outcome: verdict first, trial after.
The issue receded in the winter holiday season, but gained new traction with the administration’s decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber of flight 253, in civilian court too. Republican and conservative critics saw the decision as further confirmation that the administration naively views al Qaeda-inspired attacks on the United States as merely a law enforcement problem, not a war.
Civil liberties groups, including the bipartisan Constitution Project, defend use of civilian courts in part by pointing to the record. Nearly 200 terrorists have been successfully prosecuted in federal courts since 2001, they say, compared to only three so far in the military commission system set up at Guantanamo. In addition, they say the use of civilian courts showcases the U.S. legal system and denies accused terrorists the opportunity to depict themselves as victims of a sham proceeding.
Conservatives counter that accused terrorists will enjoy too many procedural rights in a civilian court and will use a federal trial as a soapbox for anti-American rants. The critique oddly disregards the rights granted the accused in the military commission system and denigrates federal judges’ ability to control a courtroom. But Benjamin Wittes, a scholar at the Brookings Institution who has tried to steer a nonideological course on these issues, says evidentiary and legal hurdles in civilian trials do carry a risk for successful prosecutions.
From a more liberal perspective, Stephen Vladeck, a professor at American University Law School in Washington, worries that courts will circumvent these problems in terrorism cases at the cost of degrading the criminal justice system for others. In any event, Vladeck says, KSM’s case logically belongs in the military tribunal. He is accused of war crimes — plotting an attack on civilian targets as a ranking al Qaeda leader — and was captured abroad by U.S. intelligence agents. If not for this case, Vladeck asks, what are the military commissions for?
The Obama administration may be shying away from the military commissions because of their dubious history. The Bush administration created them without adequate safeguards and housed them at Guantanamo with the intention of evading effective legal review. Yet Obama is not abjuring the use of military commissions altogether. At the same time, the administration is saying that roughly 50 Guantanamo detainees may be held indefinitely without any trial either in a civilian or military forum.
The administration may have a logic to these decisions, but it has yet to emerge. Steven Engel, a Washington lawyer who served in the Bush Justice Department, hints at a concern that the administration is simply manipulating the choice of forums: stronger cases showcased in civilian courts, weaker cases out of sight in military commissions.
KSM’s trial may yet be held in federal court, and his eagerness to claim credit for 9/11 may moot any concerns about the outcome. But the administration still needs to offer a better explanation of its legal strategy in what the president and Holder both acknowledge is a “war” against terrorism.
Monday, February 1, 2010
Monday, January 25, 2010
The Roberts Court's Activist Blow for Corporate Speech
The Roberts Court’s decision to free corporations to spend unlimited amounts of their money in congressional and presidential campaigns is an undisputed instance of judicial activism and one of the least defensible in terms of judicial procedure, historical experience or public policy.
The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.
The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.
Monday, January 18, 2010
Conservatives Get Wide Strike Zone From High Court
The Supreme Court’s conservatives showed their activist side last week when they stopped a federal judge from allowing limited Internet streaming of California’s same-sex marriage trial to several other courthouses in the country. Besides its extraordinary nature, the intervention also shows the habit of the Roberts Court majority of viewing policy-laden factual disputes through an ideological lens.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
Monday, January 11, 2010
Obama Taking Partisan Fire on National Security
The good will from President Obama’s inauguration lasted only as long as it took him to reaffirm his campaign pledge to close the Guantanamo Bay prison camp on his second full day in the White House. One year out, national security law remains a political battlefield, with Republicans and conservatives mounting partisan attacks grounded more in ideology than in evidence or reason.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.
Sunday, December 13, 2009
Scalia: The Justice of Injudicious Temperament
Justice Antonin Scalia has a well developed capacity for indignation that he directs at any number of targets, including Congress, “living constitutionalists,” and international law advocates. But even long-time Scalia watchers seemed surprised early in the current Supreme Court term when Scalia chose Jewish war veterans for one of his signature from-the-bench outbursts.
Scalia professed incomprehension during the Oct. 7 arguments in Salazar v. Buono that Jewish war veterans could feel slighted at the designation of a Christian cross — with no other religious symbol — as a national memorial to World War I veterans. The eight-foot high cross, originally erected by the Veterans of Foreign Wars but later given official recognition by Congress, sits atop a hill in a remote location in the Mojave Desert in California.
“The cross doesn’t honor non-Christians who fought in the war?” Scalia asked of the lawyer representing a plaintiff who views it as an unconstitutional government endorsement of religion. The cross, Scalia continued, “is the most common symbol of the resting place of the dead.”
In all seriousness, ACLU attorney Peter Eliasberg felt obliged to explain to Scalia, a devout Roman Catholic, that the cross may be a common symbol for Christians, but not for others. “I have been in Jewish cemeteries,” Eliasberg said. “There is never a cross on a tombstone of a Jew.”
Scalia remained unconvinced. His voice rising, Scalia insisted that the idea that the cross honors only Christian war veterans was “an outrageous conclusion.”
The episode comes to mind these days as Scalia’s legacy during 23 years on the Court is being examined thanks to the first full-length biography of the justice. In American Original, Joan Biskupic, the longtime Supreme Court reporter for USA Today, provides a scrupulously fair account of Scalia’s life and views.
Biskupic, a friend and colleague for 20 years, has informed her narrative with several interviews with Scalia himself and with six of Scalia’s current or former colleagues. She accurately describes his reputation for brilliance, his strongly held legal views and his apparently increased influence in the four years since the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Along with those positives, however, Biskupic also presents the major elements of the less favorable view of Scalia the justice: his outsized ego, overbearing personality, and intellectual inconsistency. Tellingly, the most damning items come from Scalia himself or from other justices who simultaneously profess admiration for and exasperation with their irascible colleague.
“I love him,” Justice Ruth Bader Ginsburg tells Biskupic, “but sometimes I’d like to strangle him.” Ginsburg and her husband are close friends with Scalia and his wife: the justices share a passion for opera; the families share festive holiday dinners.
Justice John Paul Stevens, the longest serving of the Court’s current members, says all the justices admire Scalia’s “writing ability and his style and all the rest.” But, Stevens adds, “Everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
From Biskupic’s telling, Scalia’s dogmatism may be traced as far back as his years as a student at a Jesuit-run, all-male military academy, where the school newspaper once described him as “an exemplary Catholic.” Scalia’s pre-ecumenical faith helps explains his blind spot to the Jewish war veterans’ argument. So too his experience at an all-male military academy helps explain Scalia’s scornful dissent when the Court in 1996 ruled the all-male Virginia Military Institute guilty of unconstitutional sex discrimination.
From Scalia himself, readers learn that despite his illustrious career he nurses long lingering resentments. More than 50 years later, Scalia still broods that Princeton rejected him because of his Italian immigrant background. (He went on to graduate first in his class from Georgetown.) Nearly 30 years after the fact, he remains “bitterly disappointed” that President Ronald Reagan passed him over for solicitor general in 1981. (He was appointed the next year to the federal appeals court in Washington.) And after Chief Justice William H. Rehnquist’s death in 2005, Scalia evidently hoped for elevation to the post even while acknowledging the reasons for picking someone else.
Biskupic recounts some of the many examples of Scalia’s argumentative questioning from the bench — and his response that Ginsburg can be just as bad. She quotes some of Scalia’s inflammatory dissents — and his comment in a slightly different context that he is “not that nasty a fellow.” And she notes, in the face of Scalia’s denial, that he applies his “originalism” to constitutional cases selectively, upholding laws that he approves (abortion regulations) while striking down laws that he disapproves (the District of Columbia gun ban).
Throughout, Biskupic draws a portrait of a justice who is the very antithesis of the model judge of open mind and judicious temperament. Scalia came to the Court on Rehnquist’s elevation to the chief justiceship in 1986 and succeeded then to Rehnquist’s place as the most conservative of the nine. When Rehnquist’s bust was unveiled at the Supreme Court last week [Dec. 10], Roberts remembered his fellow conservative as “modest and unassuming,” while the liberal Stevens recalled Rehnquist as “absolutely impartial” in all procedural matters.
Some day, Scalia will be honored with his own bust in the Supreme Court building. There will be fond tributes, no doubt, but modesty and impartiality will likely go unmentioned.
Scalia professed incomprehension during the Oct. 7 arguments in Salazar v. Buono that Jewish war veterans could feel slighted at the designation of a Christian cross — with no other religious symbol — as a national memorial to World War I veterans. The eight-foot high cross, originally erected by the Veterans of Foreign Wars but later given official recognition by Congress, sits atop a hill in a remote location in the Mojave Desert in California.
“The cross doesn’t honor non-Christians who fought in the war?” Scalia asked of the lawyer representing a plaintiff who views it as an unconstitutional government endorsement of religion. The cross, Scalia continued, “is the most common symbol of the resting place of the dead.”
In all seriousness, ACLU attorney Peter Eliasberg felt obliged to explain to Scalia, a devout Roman Catholic, that the cross may be a common symbol for Christians, but not for others. “I have been in Jewish cemeteries,” Eliasberg said. “There is never a cross on a tombstone of a Jew.”
Scalia remained unconvinced. His voice rising, Scalia insisted that the idea that the cross honors only Christian war veterans was “an outrageous conclusion.”
The episode comes to mind these days as Scalia’s legacy during 23 years on the Court is being examined thanks to the first full-length biography of the justice. In American Original, Joan Biskupic, the longtime Supreme Court reporter for USA Today, provides a scrupulously fair account of Scalia’s life and views.
Biskupic, a friend and colleague for 20 years, has informed her narrative with several interviews with Scalia himself and with six of Scalia’s current or former colleagues. She accurately describes his reputation for brilliance, his strongly held legal views and his apparently increased influence in the four years since the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Along with those positives, however, Biskupic also presents the major elements of the less favorable view of Scalia the justice: his outsized ego, overbearing personality, and intellectual inconsistency. Tellingly, the most damning items come from Scalia himself or from other justices who simultaneously profess admiration for and exasperation with their irascible colleague.
“I love him,” Justice Ruth Bader Ginsburg tells Biskupic, “but sometimes I’d like to strangle him.” Ginsburg and her husband are close friends with Scalia and his wife: the justices share a passion for opera; the families share festive holiday dinners.
Justice John Paul Stevens, the longest serving of the Court’s current members, says all the justices admire Scalia’s “writing ability and his style and all the rest.” But, Stevens adds, “Everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
From Biskupic’s telling, Scalia’s dogmatism may be traced as far back as his years as a student at a Jesuit-run, all-male military academy, where the school newspaper once described him as “an exemplary Catholic.” Scalia’s pre-ecumenical faith helps explains his blind spot to the Jewish war veterans’ argument. So too his experience at an all-male military academy helps explain Scalia’s scornful dissent when the Court in 1996 ruled the all-male Virginia Military Institute guilty of unconstitutional sex discrimination.
From Scalia himself, readers learn that despite his illustrious career he nurses long lingering resentments. More than 50 years later, Scalia still broods that Princeton rejected him because of his Italian immigrant background. (He went on to graduate first in his class from Georgetown.) Nearly 30 years after the fact, he remains “bitterly disappointed” that President Ronald Reagan passed him over for solicitor general in 1981. (He was appointed the next year to the federal appeals court in Washington.) And after Chief Justice William H. Rehnquist’s death in 2005, Scalia evidently hoped for elevation to the post even while acknowledging the reasons for picking someone else.
Biskupic recounts some of the many examples of Scalia’s argumentative questioning from the bench — and his response that Ginsburg can be just as bad. She quotes some of Scalia’s inflammatory dissents — and his comment in a slightly different context that he is “not that nasty a fellow.” And she notes, in the face of Scalia’s denial, that he applies his “originalism” to constitutional cases selectively, upholding laws that he approves (abortion regulations) while striking down laws that he disapproves (the District of Columbia gun ban).
Throughout, Biskupic draws a portrait of a justice who is the very antithesis of the model judge of open mind and judicious temperament. Scalia came to the Court on Rehnquist’s elevation to the chief justiceship in 1986 and succeeded then to Rehnquist’s place as the most conservative of the nine. When Rehnquist’s bust was unveiled at the Supreme Court last week [Dec. 10], Roberts remembered his fellow conservative as “modest and unassuming,” while the liberal Stevens recalled Rehnquist as “absolutely impartial” in all procedural matters.
Some day, Scalia will be honored with his own bust in the Supreme Court building. There will be fond tributes, no doubt, but modesty and impartiality will likely go unmentioned.
Thursday, October 8, 2009
Repealing 'Don't Ask, Don't Tell' With the Presidential Pen
John F. Kennedy promised during his 1960 presidential campaign to end racial discrimination in federally assisted housing “with the stroke of a pen,” but the author of Profiles in Courage waited almost two years to issue the promised executive order.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Sunday, October 4, 2009
Justices' Choice: Protecting Animals or Free Speech?
Hard cases make bad law. Consider one at the start of the Supreme Court’s new term that asks the justices to choose between protecting the First Amendment and preventing cruelty to animals.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
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