Topic: Law and Civil Liberties

Fixing Detention

The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.

This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.

This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.

The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.

The Ricci Ruling: A Victory for Merit over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

Supreme Court Rules on Ricci v. DeStefano

In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.

The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.

The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.

As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.

Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.

The Importance of Just Saying No

George Will:

Conservatives are accused of being a party of “no.” Fine. That is an indispensable word in politics because most new ideas are false and mischievous. Furthermore, the First Amendment’s lovely first five words (“Congress shall make no law”) set the negative tone of the Bill of Rights, which is a list of government behaviors, from establishing religion to conducting unreasonable searches, to which the Constitution says: No.

‘The Police Became a Mob’

Chief Judge Frank Easterbrook recounts the horrific police attack on Frank Jude in a ruling this month from the Seventh Circuit Court of Appeals. 

By way of background, Jude tagged along with some young ladies to a house party late one evening.  The party was mostly off-duty cops who immediately made Jude feel unwelcome.  Jude left after just 5 minutes, but several men followed him out to the street and accused him of stealing someone’s police badge.  Then the beating began:

Men punched Jude’s face and torso; when he fell to the ground, they kicked his head and thighs. The partygoers behaved as a mob. Not a single person in the house tried to stop the attack or even to call for aid. Jon Clausing, who had slashed Harris’s face, explained his conduct as “just kind of going along with everybody.” That is the way of the mob. Society has police forces to pose a counterweight to mobs, yet here the police became a mob.

Schabel and Martinez were on duty and had not been drinking, so they should have put a stop to the violence. Instead Schabel joined it, while Martinez watched. On being told that Jude had stolen Spengler’s badge, Schabel called Jude a “motherfucker” and stomped on his face until others could hear bones breaking. After telling Martinez “I’m really sorry you have to see this,” Daniel Masarik picked Jude off the ground and kicked him in the crotch so hard that his body left the ground. Jon Bartlett then took one of Schabel’s pens and pressed it into each of Jude’s ear canals, causing severe injury and excruciating pain. The men also broke two of Jude’s fingers by bending them back until they snapped. Spengler put a gun to Jude’s head and said: “I’m the fucking police. I can do whatever I want to do. I could kill you.” Bartlett used a knife to cut off Jude’s jacket and pants, leaving him naked on the street in a pool of his own blood.

The attack was so violent that it couldn’t be ignored.  Several officers were prosecuted, but the blue wall of silence kicked in and several officers committed perjury to shield their criminal acts.  Judge Easterbrook writes, “The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.” 

Read the whole thing (pdf).  Previous coverage here.

HT: Sentencing Law and Policy.

One Year After Heller

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.

Institutional Crisis Unfolds in Honduras

A serious institutional crisis is taking place in Honduras as a result of President Manuel Zelaya’s call for a new constitution that would allow for his reelection. Zelaya, a close ally of Hugo Chávez, is barred from pursuing a second term in the general elections in November.

Unfortunately for Zelaya, he doesn’t have the backing of his own party, much less any other major political group. So he has moved unilaterally to call for a referendum on the need for a new constitution. The vote, which is scheduled for this Sunday, has been declared illegal by the Supreme Court and the Electoral Tribunal, and condemned by the Honduran Congress and attorney general (whose office is not part of the cabinet in Honduras).

Despite the widespread institutional opposition to his plans, Zelaya is pushing for the vote. On Wednesday he ordered the Honduran armed forces to start distributing the ballots and other electoral materials throughout the country. The army chief, complying with the Supreme Court ruling, refused to obey the order. Zelaya sacked him, which prompted the resignation of all other leading army officers and the defense minister.

The attorney general is asking Congress to impeach Zelaya for violating the institutional order and abusing his powers. Last night, the Congress discussed removing Zelaya from his office. The president is defiant and has accused the Congress of attempting a coup.

In the meantime, thousands of Zelaya’s supporters are taking to the streets. Yesterday, a mob personally led by Zelaya stormed a Honduran air force base in order to retrieve the electoral materials that the generals refused to distribute. The army is reportedly deploying troops in the capital Tegucigalpa to prevent possible riots.

Zelaya’s mentor, Hugo Chávez, is not staying out of the row. Last night he warned that Venezuela and its allies won’t sit idle while the Honduran “elites” launch a coup d’etat against Zeleya. He threatened to do “whatever it takes” to defend him. It might be more hot air coming from Venezuela’s strongman, but it certainly raises the spectrum of foreign involvement in what constitutes a domestic Honduran crisis.

In an interesting twist, Zelaya has asked the Organization of American States (OAS) to intervene and defend Honduras’ democratic institutions. Most countries in the OAS are client-states of Chávez’s oil largesse. This is why the organization has repeatedly failed to condemn the abuses that Chávez and his Bolivarian friends in Ecuador, Bolivia and Nicaragua have committed against democratic institutions, independent media, the opposition, and so on. More recently, the general assembly of the OAS has lifted the membership suspension imposed on Cuba, despite the country’s blatant violation of the democratic charter of the organization.

So it wouldn’t be surprising for the OAS to come to Zelaya’s rescue with a statement in his favor, despite his efforts to subvert Honduras’ democratic institutions. Mimicking Chávez’s words, the OAS envoy to Honduras has already said that the organization won’t recognize any government that comes out of “a coup.” José Miguel Insulza, the OAS secretary general, gave a confusing and ambiguous statement regarding the sacking of the army chief, saying that “the Armed Forces should obey the constitutional mandate and the constituted authority.” It sounds more like an endorsement of Zelaya’s position. The OAS general assembly is meeting today to discuss the crisis.

It’s clear that Zelaya is deliberately generating an institutional crisis. He can rely on the support of Chávez and his regional allies in the OAS. And he knows that if the armed forces try to remove him, it would look like a “coup d’etat” that would probably be widely condemned all throughout Latin America.

This is a real test for the OAS and its supposed (and tarnished) commitment to democratic republican principles.