Topic: Law and Civil Liberties

Marion Barry, Defender of Marriage

Former District of Columbia mayor and current councilman Marion Barry

told church leaders and other opponents of gay marriage Tuesday that he opposed the city council’s decision to recognize same-sex marriages performed outside the District.

Calling himself “a politician who is moral,” Barry said he would have voted against the measure if he had been present at the April 6 session.

As a service to our beyond-the-Beltway readers, we should note that Barry is a career politician with 29 years on the public payroll (not counting six months in jail); four wives, one of whom went to jail for embezzling from the federally funded “jobs program” they co-founded;  countless extramarital relationships, many of them consensual; a federal conviction for crack use while mayor; eight years of unpaid taxes; and a virtually unbroken trail of graft and scandal in his four terms as mayor. 

You wonder what the politicians who are not moral are like.

Like FDR — In a Really Bad Way

President Barack Obama based his candidacy in part on the promise to set a new tone in Washington.  But we saw a much older tone emerge with his demonization of hedge funds over the Chrysler bankruptcy.  Reports the Washington Post:

President Obama’s harsh attack on hedge funds he blamed for forcing Chrysler into bankruptcy yesterday sparked cries of protest from the secretive financial firms that hold about $1 billion of the automaker’s debt.

Hedge funds and investment managers were irate at Obama’s description of them as “speculators” who were “refusing to sacrifice like everyone else” and who wanted “to hold out for the prospect of an unjustified taxpayer-funded bailout.”

“Some of the characterizations that were used today to refer to us as speculators or to say we’re looking for a bailout is really unfair,” said one executive who spoke on condition of anonymity because of the sensitivity of the matter. “What we’re looking for is a reasonable payout on the value of the debt … more in line with what unions and Fiat were getting.”

George Schultze, the managing member of the hedge fund Schultze Asset Management, a Chrysler bondholder, said, “We are simply seeking to enforce our bargained-for rights under well-settled law.”

“Hopefully, the bankruptcy process will help refocus on this issue rather than on pointing fingers at lenders,” he said.

I won’t claim any special expertise to parse who is responsible for what in the crash of the U.S.  (meaning Big Three) auto industry.  However, attacking people for exercising their legal rights and trashing those who make their business investing in companies hardly seems like the right way to get the U.S. economy moving again.

During the Depression, FDR’s relentless attacks on business and the rich almost certainly added to a climate of uncertainty that discouraged investment during tough times.  Why put your money at real risk when the president and his cohorts seem determined to treat you like the enemy?  While President Obama need not treat gently those who contributed to the current crisis by acting illegally or unscrupulously, he should not act as if those who simply aren’t willing to turn their economic futures over to the tender mercies of the White House are criminals.

We’ve just lived through eight years of bitter partisan warfare.  The president shouldn’t replace that with a jihad against businesses that resist increased government direction of the economy.

Vetting the Future Supreme Court Justice

In choosing a Supreme Court nominee to replace Justice Souter, President Obama will have an opportunity to avoid the partisanship he promised to reduce on the campaign trail, which his legislative agenda has thus far only exacerbated.

But given the way Bush nominees were treated by Senate Democrats, it won’t be easy. After the stormy confirmation hearings for Judges Bork and Thomas, President Clinton’s nominations of Judges Ginsburg and Breyer sailed through the confirmation process with little opposition and even less acrimony. With the return of Republican nominees after the election of George W. Bush, however, Senate Democrats resumed their scorched earth practices, starting with appellate court nominees and continuing to the nominations of Judges Roberts and Alito to the High Court.

Hearings were never held, filibusters were threatened and reputations were tarnished.

The question now for Senate Republicans will be, is turnabout fair-play?

The answer may turn on just who President Obama selects. At the least, given this recent history, there is no reason Senate Republicans need to be unduly deferential to the president’s nominee. We will need to know both the judicial philosophy and the constitutional philosophy of the nominee.

That will require respectful but sharp questioning by members of the loyal opposition. Their duty under the Constitution requires nothing less.

Republican Strategy on the Supreme Court Vacancy

President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups.  The Republicans will have to decide what posture to take: combative or deferential, political or analytical.

With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.

What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want.  Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide.  If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.

Al-Marri Pleads Guilty

Ali Saleh Kahlah al-Marri pleaded guilty to conspiring with al Qaeda leaders to commit acts of terrorism yesterday.  He could be sentenced up to 15 years in prison, though he has spent nearly half that awaiting trial and may get credit for the time already served.

Al-Marri was an exchange student who arrived in the United States on September 10th, 2001 as an al Qaeda sleeper agent.  Read the government’s declaration of facts used to detain him.  This is the stuff of movies; the FBI took a dangerous man off the streets when it arrested him.

Unfortunately, the government took him out of the criminal justice system and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed in the future).  He became a domestically detained enemy combatant and the test case for future domestic military detentions.  Just as attorneys seek sympathetic plaintiffs to overturn unjust laws, the government can find unsympathetic defendants to justify overbroad claims of power.  Al-Marri is about as unsympathetic as you can get.

The real tragedy is that al-Marri will serve a relatively short sentence.  Had the government prosecuted him on the seven charges alleged the first time around, he would have been put away for decades.  Related posts here, here, here, and here.

Who Will Replace Justice Souter?

You could call it the end of an error.  David Souter, the “stealth justice” who George H. W. Bush nominated mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to leave a city he never took to and return to his native New Hampshire. 

Little more can be said about Justice Souter. He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark 1992 cases of Planned Parenthood v. Casey (abortion) and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg, and Breyer – all the while employing an unpredictable jurisprudential method.  And he has always been reclusive, refusing reporters’ and scholars’ interview requests and being the biggest opponent of video cameras inside the Court.  Perhaps most memorably, Souter gained notoriety after his vote in Kelo v. New London (allowing the taking of a private home for the benefit of a developer) spurred property rights activists to petition for the use of eminent domain to turn his farm into the “Lost Liberty Hotel.”

Speculation now turns to possible replacements, and what President Obama will do with his first chance to fill a seat on the high court.  Will he risk a big political battle on this issue so early in his term, or will he appoint someone more confirmable but less pleasing to his base? 

He is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood.  Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation.  Sotomayor — because she is Hispanic and despite a mixed judicial record — was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race.  That leaves Wood, a renowned authority on antitrust, international trade, and federal civil procedure, whose age (58) suggests that this is likely the last vacancy for which she will be considered.  Wood offers a seriousness of purpose and no ideological ax to grind, and is thus the best nominee supporters of constitutionalism and the rule of law can hope for at this time.  (Full disclosure: I took two classes from Judge Wood in law school.)

DoJ Fails to Report Electronic Surveillance Activities

Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content - who is talking to whom, how often, and for how long.)

The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:

The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).

EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.

It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.