Topic: Law and Civil Liberties

Questions For And About Michael Mukasey

George Will has some terrific questions for the President’s nominee to be Attorney General, Michael Mukasey.  I’m glad that Will is drawing more attention to the administration’s startling claim that all of America is a “battlefield.”  In a recent article for Legal Times, I urged the next attorney general to disavow that claim.  (For more detail, go here, and read pp. 7-15).

Will also cites an important new book by the Boston Globe’s Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American DemocracyHere is an excerpt from Will’s column:

The Constitution’s Framers, disliking the British sovereign’s “prerogative power” to set aside a law for a claimed public good, stipulated that the president shall “take care that the laws be faithfully executed.” But consider “signing statements,” whereby presidents, when signing legislation, attach statements sometimes directing the executive branch not to execute certain portions. This practice is, in effect, something the Constitution does not permit – a line-item veto. Savage, who won a Pulitzer Prize for his reporting on this president’s signing statements, writes that such statements were rare until the mid-1980s, when some conservatives urged frequent use of them as a means of maximizing presidential powers. Savage says: “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.” Is this a real danger?

Read the whole thing.

Also on the Washington Post editorial page is a piece by Bob Novak on the internal deliberations in the Bush White House regarding their pick for Attorney General.  Novak is very critical: “Mukasey is not well qualified to be attorney general by any rational standard.”

More Bush Administration Lawbreaking

Over at Ars Technica, I report on the latest allegations of illegal activities by the Bush administration. Back in March, a Department of Justice report revealed that the FBI had sent hundreds of letters to telecom providers requesting that due to “exigent circumstances,” the providers turn over customer records without a warrant. The FBI later acknowledged that these letters were improper (read: illegal) and announced that the use of those “exigent letters” had been suspended.

Now, thanks to a freedom-of-information request by the Electronic Frontier Foundation, we learn that some of the letters not only requested call records for specific phone numbers, but also asked the providers to “provide a community of interest” for each phone number. It’s not clear exactly what information was provided in response to that request, but in a Monday blog post, EFF’s Kurt Opsahl argues that the request was almost certainly illegal—and would have been illegal even if they had been made as part of a legally-authorized warrant or national security letter.

“We need a new word for this,” Opsahl writes, “what do you call an illegality piled on top of another illegality? Illegal squared?”

Asked about the latest allegations of executive branch lawbreaking, White House Homeland Security Advisor Fran Townsend pointed to the creation of a new “compliance unit” in the FBI. It’s good to hear the FBI is taking the law so seriously, but I thought the Constitution already provides for a “compliance unit.” It’s called the judicial branch.

You Know It’s a Dark Hour When…

…you’re having wistful fantasies about staff meetings. In all seriousness, though, there’s great news: once imprisoned by Iran, Wilson Center scholar Haleh Esfandiari is back at home in Washington–and back at work at the Wilson Center. But as she says, during her stint in Evin prison, she was indeed dreaming about being back at Wilson Center staff meetings:

I had blocked, you know, thinking about my husband, my daughter, my grandchildren, the house; I blocked all that out because that would have led me to despair. So, for eight months, or for the four months in prison, I didn’t think about it.

I dreamt of my first staff meeting at the Wilson Center. (Laughter.) I seriously did. I really did that, I said, OK, I would [not] tell anybody I’m in town … I would open the door Monday morning at 9:00, walk in to the staff meeting and everybody [would say], “She’s here!”

Full transcript of Esfandiari presser here. (.pdf)

Friday Legal Roundup

Here’s a Friday Legal Roundup:

  • North Carolina prosecutor Michael Nifong goes to jail for his misconduct in bringing reckless charges against Duke athletes. Cato will be hosting a book forum on the case next Tuesday. Previous coverage here and here
  • A federal judge has ruled that ”National Security Letters” are unconstitutional.  Cato said so here.
  • The Federalist Society has an on-line discussion on the landmark Second Amendment lawsuit involving Cato’s Tom Palmer and Bob Levy here. To learn more, go here and here.
  • President Bush is expected to announce his choice for the position of Attorney General. The Legal Times invited several D.C. lawyers, including myself, to offer advice to the next AG.  Go here for my list of Dos and Don’ts. If the Legal Times had not imposed word limits on my article, I could have said a lot more.

“Why Are You Trying to Give Away the President’s Power?”

Jack “I’m Not a Civil Libertarian” Goldsmith has more on the thirst for power inside the executive branch in excerpts from the book in Slate today.

[Counsel to Vice President Cheney David] Addington once expressed his general attitude toward accommodation when he said, “We’re going to push and push and push until some larger force makes us stop.” He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.

More here.

Cato Brief in NYT

One of the big cases the Supreme Court will be hearing in its upcoming term concerns the constitutionality of the Military Commissions Act.  That law sought to revoke the jurisdiction of federal courts over habeas corpus lawsuits arising out of the Guantanamo Bay prison facility.  The case will not be heard by the High Court until November, but the New York Times had an article about it over the weekend quoting from the Cato brief (pdf) that I prepared.  I argue that Congress overstepped its authority by trying to withdraw the jurisdiction of federal courts over habeas corpus claims. 

More background about the case in this NYT article (reg r’d).  For more about the constitutional record of the Bush administration, read this.

Oprah Winfrey, Political Power Broker

Billionaire Oprah Winfrey is making a million-dollar contribution to Barack Obama’s presidential campaign. And despite all the campaign finance restrictions of the past 30 years, it’s perfectly legal. That’s because Oprah is making her contribution in the form of time on her television show, appearances with him on the campaign trail, and other uses of her celebrity. But if a rival media mogul, someone like Sumner Redstone or John Malone, wanted to make a contribution of more than $2,300 to a presidential candidate, that would be illegal. Because, you know, it’s corrupt to make a large contribution. Wouldn’t want the next president to be indebted to a businessman who gave him a $10,000 contribution.

This Saturday, “Winfrey will host her first-ever presidential fundraising affair on the grounds of the Promised Land, her 42-acre ocean- and mountain-view estate in Montecito, Calif. – an event that is expected to raise more than $3 million for Obama’s campaign.”

Matthew Mosk of the Washington Post outlines some of the other ways Winfrey might help her preferred candidate.

Among the weapons in Winfrey’s arsenal: the television program that reaches 8.4 million viewers each weekday afternoon, according to the most recent Nielsen numbers. Her Web site reaches 2.3 unique viewers each month, “O, the Oprah Magazine,” has a circulation of 2 million, she circulates a weekly newsletter to 420,000 fans and 360,000 people have subscribed to her Web site for daily “Oprah Alerts” by e-mail.

More than that, though, the Nielsen tracking data show that her most loyal viewers are women between 25 and 55 – a group that also votes in large numbers in Democratic primaries.

Oprah’s well aware of her power:

The fundraiser may be only the start. The Winfrey and Obama machines have maintained silence on the exact nature of their talks over what her role will be, but the idea of her appearing in television ads and other appeals is very much in play. She offered during a recent interview with CNN’s Larry King: “My money isn’t going to make any difference. My value to him – my support of him – is probably worth more than any other check that I could write.”…

Winfrey said in an audio Web chat last week that, this year, the Obamas will be her only political guests.

Campaign finance reform was promised as a way to make everyone equal in the political process, to squeeze out the power of big money. But one of its effects is to make some rich people more equal than others. If Oprah–or Rupert Murdoch, or Donald Graham–decides to use his or her resources to help a particular candidate, that’s legal and very powerful. But the rich man who runs a software company is forbidden to use any significant part of his financial resources to help a candidate.

All power to journalists and celebrities in the reformed political process.