Dynamiting the remaining pillar — the Judiciary

September 30th, 2006

And that judiciary better mind their “institutional limitations.” Best to note that the final piece here is not like Aziz Huq’s article of yesterday, Terror 2016 – it’s ‘real time.’

Jude

Gonzales Cautions Judges on Interfering
MICHAEL J. SNIFFEN, AP
Friday, September 29, 2006
http://www.washingtonpost.com/wp-dyn/content/article/2006/09/29/AR2006092900511.html

WASHINGTON — Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

“Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,” Gonzales said.

And he said the independence of federal judges, who are appointed for life, “has never meant, and should never mean, that judges or their decisions should be immune” from public criticism.

“Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot - and should not - be shielded from criticism,” Gonzales said. “A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches.”

His audience included legal scholars and judges, including Justice Clarence Thomas, one of the Bush administration’s most reliable supporters on the Supreme Court.

The attorney general did not refer to any specific case or decision but only to wartime, military and foreign affairs cases in general.

Gonzales has sent Justice Department lawyers into federal courts from coast to coast defending Bush’s detention of terrorist suspects at Guantanamo Bay, Cuba, his plans to try some of them before military tribunals and his use of the National Security Agency to wiretap Americans without court warrants when they communicate with suspected terrorists abroad.

Over administration objections, the Supreme Court ordered that detainees could challenge aspects of their imprisonment in federal courts and overturned Bush’s plans for military tribunals, forcing Bush to ask Congress to approve a new version of the panels.

A handful of federal district judges either ordered an end to the warrantless wiretapping or agreed to hear court challenges to it. Opponents of the plan argue the NSA program violates the Foreign Intelligence Surveillance Act’s requirement that the government get a warrant from a court that meets in secret before wiretapping Americans to gain intelligence information.

The administration contends that despite the statute’s language, the president has inherent authority from the Constitution to order such eavesdropping without court permission. Justice lawyers also have argued that the challenges to the NSA program should be thrown out of court because trials would expose state secrets. Most of the judges’ rulings and proceedings have been stayed pending appeal.

Gonzales also said he thought more states should move away from having judges stand in partisan elections to keep their seats. Gonzales himself as a Texas Supreme Court justice “had to raise enough money to run print ads and place television spots around the state in order to retain my seat.”

In such contested elections, “most of the contributions come from lawyers and law firms, many of whom have had, or will have, cases before the court,” Gonzales said. “The appearance of a conflict of interest is difficult to dismiss.”

He noted favorably that some states have adopted other ways of picking judges, including merit selection and appointment with simple up-or-down retention elections rather than contested campaigns. With polls showing many voters think judges can be swayed by campaign contributions, Gonzales said, “If Americans come to believe that judges are simply politicians, or their decisions can be purchased for a price, state judicial systems will be undermined.” ++

Know Your Place
by digby
9/30/2006
http://digbysblog.blogspot.com/

Just in case they failed to get the memo:

Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

Right. The Empty Codpiece and his federalist society drones are the ones the constitution anticipated should be interpreting the constitution when the US engaged in an unending, undeclared “war” on a tactic.

If these Republicans manage to hold on to the presidency, which they very well may since we’ve anointed St McCain of Guantanamo, I guess we’d better get used to the idea that we are living in an All American form of military dictatorship. There really is no other way to interpret Gonzales’ statement.

Funny how we managed to get through the cold war and WWII without stripping the courts of authority, but then the Commies and the Nazis were nothing (nothing, I tell you!) to the existential threat posed by Osama bin Laden and his henchmen. It’ll be a miracle if the country survives. ++

PFAW: Bush Judges Confirm Opponents’ Fear
News Release, BuzzFlash
Fri, 09/29/2006
http://www.buzzflash.com/articles/releases/025

Report Documents Impact of Bush-Nominated Appeals Court Judges

Federal appeals court judges nominated by President Bush are threatening and undermining Americans’ rights and liberties, and working to reduce congressional authority to protect those rights and liberties, according to a legal analysis published today by People For the American Way Foundation.

“President Bush has fallen far short in keeping his promise to appoint judges who will interpret the law, not make it,” said People For the American Way Foundation President Ralph G. Neas. “Judges nominated by President Bush and confirmed by the U.S. Senate are undermining Americans’ rights, liberties, and legal protections.”

The report, Confirmed Judges, Confirmed Fears, covers cases decided between September 1, 2004 and May 31, 2006. It provides a significant update to preliminary analyses of Bush-nominated judges that PFAWF published in 2004. The new report documents that troubling trends identified in earlier reviews have continued as more Bush appointees gain more experience and tenure on the appellate courts - more and more opinions seek, sometimes successfully, to cut back broadly on Americans’ rights under our Constitution and laws.

“The cumulative impact of the Bush administration’s ideological approach to judicial nominations is beginning to be felt,” said People For the American Way Foundation Vice President and Legal Director Elliot M. Mincberg. “What we’re seeing is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts.”

For example, Confirmed Judges, Confirmed Fears reports that two controversial Bush appellate judges - Michael McConnell on the Tenth Circuit and Lavenski Smith on the Eighth Circuit - cast deciding votes in rulings that significantly restricted individuals’ rights under the Family and Medical Leave Act, including one decision that struck down a Department of Labor regulation protecting workers.

In addition, Bush-nominated appellate judges wrote or joined opinions that:

* tried to rewrite legal protection for employees against sexual harassment under Title VII of the 1964 Civil Rights Act, explicitly contradicting the Equal Employment Opportunity Commission and several previous court decisions Lutkewitte v. Gonzales, D.C. Cir. (Judge Brown)

* attempted to significantly weaken Section 2 of the Voting Rights Act by requiring proof of discriminatory intent in voting cases, a requirement that another judge explained was flatly inconsistent with Congress’ language and intent Johnson v. Governor of Fla., 11th Cir. (Judge Pryor)

* cast the deciding vote that the First Amendment did not apply at all to a restrictive municipal “English only” mandate Moldonado v. City of Altus, 10th Cir. (Judge Hartz)

* cast the deciding vote to limit the ability of health clinics to challenge anti-abortion laws Nova Health Systems v. Gandy, 10th Cir. (Judge Tymkovich)

* tried to rule that taxpayers could not sue to obtain restitution of government funds illegally transferred to private universities in violation of the Establishment Clause Laskowski v. Spellings, 7th Cir. (Judge Sykes)

* cast the deciding vote effectively authorizing partisan challengers who targeted African-American precincts to challenge voters, creating what the dissenting judge called a “threat of suppression, intimidation or chaos sown by partisan political operatives.” Summit County Democratic Cent. & Exec. Comm. v. Blackwell, 6th Cir. (Judge Rogers)

* tried to prevent terminally ill patients from seeking to obtain access to drugs partly approved by the FDA when no other government approved treatment options are available Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, D.C. Cir. (Judge Griffith)

Another damaging trend documented in the report is judges preventing, or advocating in dissent to prevent, individual Americans from having their day in court and presenting their claims to a jury. In a number of cases, Bush judges have been specifically criticized by their colleagues for improperly applying the summary judgment standard and denying plaintiffs their day in court despite the existence of important evidence supporting their claims, or for other reasons have tried to throw such cases out of court. Bush-nominated appeals court judges have written or joined opinions that have sought to:

* prevent a female worker from attempting to prove that significant salary disparities between her and male employees violated the Equal Pay Act Ambrose v. Summit Polymers, Inc., 6th Cir. (Judge Sutton)

* deny the family of a murdered 8-year old girl the opportunity to try to prove in court that local officials had helped put her in danger Bright v. Westmoreland County, 3d Cir. (Judge Smith)

* stop an African-American man from pursuing a claim that his constitutional rights had been violated by state troopers engaged in racial profiling Gibson v. Superintendent, 3d Cir. (Judge Van Antwerpen)

* overturn a lower court decision that a female sheriff department employee who had been sexually harassed by the sheriff (who, among other things, called her vagina a “snapper” and stroked “his mustache while telling [her] he was ‘clearing off her seat’”) could pursue a claim that she had effectively been forced to resign Wright v. Rolette County, 8th Cir. (Judge Melloy)
* prevent an African-American employee fired from a Wal-Mart store, who had been called a “lawn jockey” by his supervisor, from trying to prove he had suffered illegal racial discrimination and harassment Canady v. Wal-Mart Stores. Inc., 8th Cir. (Judge Riley)

* stop a Wal-Mart employee at another store from even presenting to a jury her claim that she had been fired because of illegal pregnancy-based employment discrimination Quick v. Wal-Mart Stores, Inc., 8th Cir. (Judge Riley)

It is important to note that decisions are included in this review based on objective criteria described below, not on whether PFAW Foundation agrees or disagrees with the opinions expressed. We do not take a position on every case, opinion, or ruling included in this report.

The report makes clear that judges who received strong bipartisan support have been much less likely to write or join opinions that seek to rewrite the law to damage Americans’ rights. On the other hand, judges who received significant opposition and concern in the Senate — like William Pryor, Janice Rogers Brown, Jeffrey Sutton, D. Brooks Smith, and Michael McConnell — have often written or joined such troubling opinions.

Note on Methodology: We reviewed non-criminal cases in which Bush-nominated appellate judges have participated from Sept. 1, 2004 through May 31, 2006 that raise issues concerning congressional authority, as well as all civil cases raising significant issues of constitutional liberties, civil rights, employment discrimination, consumer rights, privacy, environmental protection, congressional authority, access to justice, and similar matters involving the rights and interests of ordinary Americans. (We did not include habeas corpus cases raising individual criminal law claims or immigration cases involving the status of individual immigrants.) Because the purpose of this look at President Bush’s appellate judges was to determine whether and to what extent those judges are having an impact on these significant areas of the law, we focused our review on cases in which the court’s decision was divided, making the role of individual judges potentially decisive. Because some of these judges have been on the federal courts for a relatively short period of time, because most appellate decisions are unanimous, and because cases are assigned randomly, some of the Bush-nominated judges have not participated in divided cases in these areas of concern. Our report does not examine the record of Judge Roger Gregory, since he was originally nominated to the Fourth Circuit by President Clinton. ++

‘Operation Return to Sender’ stumbles
Jennifer Van Bergen, Raw Story
Thursday September 28, 2006
http://tinyurl.com/nouu4

Questions are being raised about the arrest, detention, and treatment of a long-term Ukrainian legal resident alien in Florida.

Bella Maryanovsky, a thirty-year legal resident of the United States, was arrested last week on Tuesday, September 19, when she entered immigration offices for a routine update of her green card papers. It appears she was arrested under a new immigration program called “Operation Return to Sender.”

According to Michael Chertoff in a June 2006 press release, “Operation Return to Sender is another example of a new and tough interior enforcement strategy that seeks to catch and deport criminal aliens, increase worksite enforcement, and crack down hard on the criminal infrastructure that perpetuates illegal immigration.”

“The fugitives captured in this operation,” claimed Chertoff, “threatened public safety in hundreds of neighborhoods and communities around the country. This department has no tolerance for their criminal behavior.”

However, Maryanovsky, according to her family and friends, has long been an upstanding member of society. She is currently employed placing engineers in jobs nationwide with salaries ranging from $75,000 to $250,000.

Gino Sedikov, Maryanovsky’s attorney, explained in a Monday conversation that he has yet to determine the charges on which Maryanovsky is being held. She was not provided with a “notice to appear” or given any indication that her immigration file had been flagged or that Immigration and Customs Enforcement (ICE) intended to arrest her. Sedikov believes this is part of the new policy in the ICE office.

Michael Keegan, a spokesman for ICE in Washington, D.C. told RAW STORY in a phone conversation on Wednesday, “It is not our job to create the law. It is not our job to interpret the law. Our job is to enforce the law.” According to Keegan, “the posture of law enforcement agencies has completely changed since 9/11.”

The most likely reason Maryanovksy’s file was flagged is that in 1989 she was convicted – wrongfully, according to her family – of committing a crime that at the time was not a deportable offense. Laws passed in the 1990’s that applied retroactively, according to Keegan, would have made her offense a deportable one.

However, according to immigration expert Mark Levey, who has practiced immigration law in Washington, D.C. for twenty years, only crimes that were aggravated felonies at the time of commission were swept in under the retroactive rule. Thus, Levey believes that Maryanovsky’s immigration file was probably flagged incorrectly.

“Because Maryanovsky’s crime precedes the 1990’s laws,” Levey explains, “although she is still deportable, she is nonetheless eligible for bond and for relief from removal based on her good character.”

Why was Maryanovsky arrested now, almost twenty years after her conviction? Keegan contends, “It’s because we’re such a good agency,” implying that ICE does a better job than its predecessor, Immigration and Naturalization Service (INS).

According to Sedikov, thousands of immigrants are sitting in jails and detentions centers without any hope of what is called “relief from removal” – that is, cancellation of a charge that would otherwise result in deportation.

The present immigration system, reformulated under the Department of Homeland Security after the passage of the Homeland Security Act of 2002, was divided into two parts: an enforcement agency (Immigration and Customs Enforcement, or “ICE,” ironically referred to by immigration attorneys as the “ICEmen”) and a separate service agency for getting a green card.

ICE is further divided into an investigative unit, a deportation/removal unit, and a detection/arrest unit. Because of these divisions, “the wheels of justice move slowly,” says Sedikov. A detainee’s file is supposed to follow them from unit to unit, but sometimes – as in Maryanovsky’s case – the file is lost. The detainee may then wait in detention for months until the file is found. Even when a file is accounted for, detainees may still spend weeks in jail, since detention centers are overfull. [emphasis, mine.]

In the meantime, explains Sedikov, if the detainee is not held near an immigration court there is no mechanism by which they can be brought before an immigration judge to challenge their detention. The individual must simply wait until the right official in the right department of ICE decides it is time to bring them to court. Immigration courts do not have sheriffs who can bring detainees in, so judges will not entertain an attorney’s request for a bond hearing unless the detainee is accessible. Thus, an individual put into detention falls into a sort of black hole.

According to Sedikov, “ICE has no duty to respect [the attorney's] requests.”

Sedikov claims he has left 70 messages on the Maryanovsky case in five days, and has received no return call from ICE officials. His current aim is to have her transferred to a location that would allow her to be brought before a judge.

Maryanovsky claims that she is currently being held in a jail cell with an accused murderer. Last week she was in a cell with five other people and only two beds, so she slept on a “urine-laden cement floor.”

To make matters more disheartening, Maryanovsky takes medication for heart arrhythmia and high blood pressure. She confided to her family and friends that prison personnel mockingly refused to give her medication, telling her, “When you have a heart attack, then we’ll help you.”

One friend, Lauren, who wished to keep her last name private, said that she has visited Maryanovsky twice, and her ankles and extremities are swelling. “[She] can go into heart failure,” Lauren told RAW STORY. According to family members, her blood pressure hit 220/110, and the family obtained a doctor’s letter to present to immigration authorities, but she was still apparently not being given her medication.

Maryanovsky is scheduled soon to be transferred to Krome Detention Center, outside Miami, according to Sedikov. Two years ago, Krome garnered much press attention when an 81-year old Haitian Baptist minister, Joseph Dantica, died while being detained there after seeking asylum. He fell ill during his hearing, after, like Maryanovsky, requesting medication for high blood pressure. Officials contend that he died of pancreatitis and deny responsibility for his death.

Ray Del Papa of the South Florida Peace and Justice Network – a coalition that includes representatives from such groups as the Quakers, Pax Christi, Buddhist Peace Fellowship, Jewish Arab Defense Association, Haiti Solidarity, and many others – told RAW STORY that he sees an incongruity in the arrest and detention of such persons as Maryanovsky or Dantica while known terrorists, such as Luis Possada Carriles, Orlando Bosch, and Virgilio Paz Romero, are allowed to remain free in the U.S., despite their criminal records.

Sedikov claims that the arresting officer told him, “We got orders to arrest everybody.”

That officer, Keith Bradley, refused to confirm or deny anything about the case to RAW STORY, saying “I still have a mortgage and bills to pay.”

Some have speculated that Maryanovsky’s sudden arrest and detention may have a political motive. Levey disagrees, as does RAW STORY managing news editor Larisa Alexandrovna, who was raised together with Maryanovsky since their arrival in the United States. But Alexandrovna, who did not contribute to the writing or editing of this piece, says she believes readers should “view this as a typical day.”

“Sure, I find it odd that in Southern Florida – where immigration targets are usually Cuban, South American, and Haitian – suddenly a Ukrainian Jew is arrested, held without charge, and her file goes missing,” says Alexandrovna. “But I also find it odd that thousands of people are being swept up in these raids, we don’t know their actual citizenship status, they are disappeared and held in detention facilities, and no one notices. It is all odd,” added Alexandrovna in a Wednesday evening email. ++

What’s right and good doesn’t come naturally. You have to stand up and fight for it - as if the cause depends on you, because it does. Allow yourself that conceit - to believe that the flame of Democracy will never go out as long as there’s one candle in your hand.
~ Bill Moyers

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Entry Filed under: Political Waves