We’ve got a problem — and plenty of motivation to go Blue in ‘08, keep this from getting worse. We have ended up with a Supremely provincial [and visibly Catholic] High Court, studiously conservative and tight-minded.
I’d be fine with a lifetime appointment for the High Court if you could find me a Caesar’s Wife or a Solomon to sit on it — instead we got Alito and Roberts to go with Scalia, who recently used Jack Bauer [TV show 24] to illustrate “extraordinary measures” to protect the world, and the UberReligious Clarence Thomas, leaving us only moderate-right Justice Kennedy, who suffers, too often, the ‘birds of a feather’ syndrome to be a decent swing vote.
Sigh.
Jude
In Second Term, Roberts Court Defines Itself
Robert Barnes, The Washington Post
Jun 25, 2007
In the final days of the Supreme Court’s term, the stage is set for the divisions that narrowly but decisively split the justices on social issues to be on full display.
The court has already decided more cases on 5 to 4 votes this term than in all of last term — some of them favoring the court’s liberal wing, more won by the conservatives. This week, the opportunity is there for the court reconstituted under Chief Justice John G. Roberts Jr. to make a bold statement.
The cases remaining concern some of the most divisive of social and policy questions: the use of race in public school admission programs; the constitutionality of advertising restrictions in the McCain-Feingold campaign finance act; whether ordinary taxpayers have the right to sue over what they perceive to be violations of the separation of church and state. ++
Supreme Court hands victory to Bush on faith-based initiatives
Michael Roston, Raw Story
Monday June 25, 2007
On a 5-4 decision, the Supreme Court ruled that a group of taxpayers did not have standing to sue the US government for its funding of faith-based initiatives with federal money. The decision, Hein v. Freedom From Religion Foundation, was written by Samuel Alito, the second Supreme Court Justice appointed by President George W. Bush, according to the website SCOTUSBlog.
The group People for the American Way slammed the decision as threatening the First Amendment.
“It’s a bad day for the First Amendment. The Supreme Court just put a big dent in the wall of separation between church and state, and a big smile on Pat Robertson’s face,” said Ralph Ness, the group’s president, in a statement. “Today’s ruling will make it more difficult for citizens whose tax dollars are being unlawfully spent to subsidize religion to bring a complaint in court. It is also consistent with a broader strategy by right-wing judges and activists to restrict standing for average Americans to challenge powerful government and business interests.”
But in Alito’s decision, the Justice was dismissive of the worries of the plaintiffs in the case.
“None of the parade of horribles respondents claim could occur…has happened,” the Court’s newest Justice wrote. “In the unlikely event any do take place, Congress can quickly step in.”
In a second 5-4 ruling, the Court ruled that schools could censor student expression outside of school grounds. The case was prompted by Juneau, Alaska, students who were punished after they held up a ‘Bong Hits 4 Jesus’ poster while attending a field trip to see the running of the Olympic Torch, according to CNN. Chief Justice John Roberts wrote the decision.
In a third 5-4 ruling, the Court decided that a Wisconsin-based anti-abortion group should have been allowed to run so-called ‘issue ads’ in the two months leading up to the 2004 Election. The decision opens the way for interest groups, business, and union to make a greater effort to sway federal elections. Chief Justice Roberts wrote the opinion in the case. ++
Court Limits Student Free-Speech Rights
MARK SHERMAN, Huff Wire
June 25, 2007
WASHINGTON — The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.
Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.
Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.
Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.
“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”
Morse suspended the student, prompting a federal civil rights lawsuit.
The winning side in the case was quick to assert that the decision was not anti-free speech.
In their concurrence, Justices Samuel Alito and Anthony Kennedy specified that the court’s opinion provides no support for any restriction on speech that goes to political or social issues.
It’s a narrow ruling that “should not be read more broadly,” said Kenneth Starr, whose law firm represented the school principal.
Students in public schools don’t have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.
The court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school’s basic educational mission.
Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son’s legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.
Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.
Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.
The case is Morse v. Frederick, 06-278. ++
Justices Loosens Limits on Campaign Ads
MARK SHERMAN, Huff Wire
June 25, 2007
WASHINGTON — The Supreme Court loosened political advertising restrictions aimed at corporate- and union-funded television ads Monday, weakening a key provision of a landmark campaign finance law.
The court’s 5-4 ruling could become a significant factor in the upcoming presidential primaries, giving interest groups a louder and more influential voice in the closing days before those contests as well as the general election.
The decision upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group’s First Amendment rights, the court said.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Chief Justice John Roberts wrote for the majority. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state’s two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush’s judicial nominees.
Feingold, a co-author of the campaign finance law, was up for re-election in 2004.
The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.
A first test of the impact of the court’s opinion could come as early as December, a month before presidential caucuses and primaries in Iowa, Nevada, New Hampshire and South Carolina.
“The ruling could have important implications for the 2008 presidential election and could reorder the advertising strategies of corporate America and labor unions over the next two years,” said Michael Toner, a former chairman of the Federal Election Commission, which oversees campaign finance law.
The decision is a setback for Sen. John McCain, R-Ariz., who helped write the 2002 campaign finance legislation with Feingold that contained the advertising provision. McCain, now a presidential candidate, has come under criticism from conservatives for attempting to restrict political money and political advertising.
“It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election,” McCain said in a statement.
The court’s decision, however, has no effect on the more far-reaching component of the campaign finance law _ it’s ban on the ability of political parties to raise unlimited and unrestricted amounts of money from unions, corporations and wealthy donors.
“Fortunately,” McCain said, “that central reform still stands as the law.”
Republican presidential candidate Mitt Romney, who has been critical of McCain’s stance, promptly hailed the court’s decision.
“McCain-Feingold was a poorly-crafted bill,” Romney said in a statement. “Today’s decision restores, in part, to the American people a right critical to their freedom of political participation and expression.”
Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court’s 2003 decision upholding the constitutionality of the provision.
Roberts and Justice Samuel Alito said only that the Wisconsin group’s ads are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.
That means the FEC will likely have to step in and write specific rules about such advertising that reflect the court’s opinion.
Justice David Souter, joined by his three liberal colleagues, said in his dissent that the court “effectively and, unjustifiably, overruled” the earlier decision.
The ads could have been run, Souter pointed out, had they been paid for out of the group’s political action committee, which is subject to federal campaign finance limits. Or Feingold’s name could have been omitted, he said.
“Thus, what is called a ‘ban’ on speech is a limit on the financing of electioneering broadcasts by entities … that insist on acting as conduits from the campaign war chests of business corporations,” Souter said.
Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens joined Souter’s dissent.
The Bush administration urged the court to ban the ads, arguing that they were meant to influence the elections, not lobby the senators.
An array of interest groups across the political spectrum sought the outcome the court reached Monday. They include: the American Civil Liberties Union, the National Rifle Association, labor unions and business groups.
The consolidated case is Federal Election Commission v. Wisconsin Right to Life, 06-969, and McCain v. Wisconsin Right to Life, 06-970. ++
“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007
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.
June 25th, 2007
Mo Dowd gives us a good snark on Cheney, and the Steve Young piece is fun — humor helps us along, in this time of frustration and anger. Here’s a collection of good reads, including a BuzzFlash editorial and, last, a piece on Rule of Law … that which has gone missing in the Dick ‘n Dubby Enron Years.
Jude
A Vice President Without Borders, Bordering on Lunacy
Maureen Dowd, New York Times
Saturday, June 23, 2007
WASHINGTON - It’s hard to imagine how Dick Cheney could get more dastardly, unless J. K. Rowling has him knock off Harry Potter next month.
Harry’s cloak of invisibility would be no match for Vice’s culture of invisibility.
I’ve always thought Cheney was way out there — the most Voldemort-like official I’ve run across. But even in my harshest musings about the vice president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet — a separate entity from the White House.
I guess a man who can wait 14 hours before he lets it dribble out that he shot his friend in the face has no limit on what he thinks he can keep secret. Still, it’s quite a leap to go from hiding in a secure, undisclosed location in the capital to hiding in a secure, undisclosed location in the Constitution.
Dr. No used to just blow off the public and Congress as he cooked up his shady schemes. Now, in a breathtaking act of arrant arrogance, he’s blowing off his own administration.
Henry Waxman, the California congressman who looks like an accountant and bites like a pit bull, is making the most of Congress’s ability, at long last, to scrutinize Cheney’s chicanery.
On Thursday, Mr. Waxman revealed that after four years of refusing to cooperate with the government unit that oversees classified documents, the vice president tried to shut down the unit rather than comply with the law ensuring that sensitive data is protected. The National Archives appealed to the Justice Department, but who knows how much justice there is at Justice, now that the White House has so blatantly politicized it?
Cheney’s office denied doing anything wrong, but Cheney’s office is also denying it’s an office. Tricky Dick Deuce declared himself exempt from a rule that applies to everyone else in the executive branch, instructing the National Archives that the Office of the Vice President is not an “entity within the executive branch” and therefore is not subject to presidential executive orders.
“It’s absurd, reflecting his view from the first day he got into office that laws don’t apply to him,” Representative Waxman told me. “The irony is, he’s taking the position that he’s not part of the executive branch.”
Ah, if only that were true. Then maybe W. would be able to close Gitmo, which Vice has insisted he not do. And Condi wouldn’t have to worry every night that she’ll wake up to find crazy Dick bombing Iran, whispering to W. that they have to do it before that weak sister Hillary takes over.
“Your decision to exempt your office from the president’s order is problematic because it could place national security secrets at risk,” Mr. Waxman, the chairman of the House Oversight and Government Reform Committee, wrote to Cheney.
Of course, it’s doubtful, now that Vice has done so much to put our national security at risk, that he’ll suddenly listen to reason.
Cheney and Cheney’s Cheney, David Addington, his equally belligerent, ideological and shadowy lawyer and chief of staff, have no shame. After claiming executive privilege to withhold the energy task force names and protect Scooter Libby, they now act outraged that Vice should be seen as part of the executive branch.
Cheney, they argue, is the president of the Senate, so he’s also part of the legislative branch. Vice is casting himself as a constitutional chimera, an extralegal creature with the body of a snake and the head of a sea monster. It’s a new level of gall, to avoid accountability by saying you’re part of a legislative branch that you’ve spent six years trying to weaken.
But gall is the specialty of Addington, who has done his best to give his boss the powers of a king. He was the main author of the White House memo justifying torture of terrorism suspects, and he helped stonewall the 9/11 commission. He led the fights supporting holding terrorism suspects without access to courts and against giving Congress and environmentalists access to information about the energy industry big shots who secretly advised Cheney on energy policy.
Dana Perino, a White House press spokeswoman, had to go out on Friday and defend Cheney’s bizarre contention that he is his own government. “This is an interesting constitutional question that legal scholars can debate,” she said.
I love that Cheney was able to bully Colin Powell, Pentagon generals and George Tenet when drumming up his fake case for war, but when he tried to push around the little guys, the National Archive data collectors — I’m visualizing dedicated “We the People” wonky types with glasses and pocket protectors — they pushed back.
Archivists are the new macho heroes of Washington. ++
“Executive Branch Not Part of the Executive Branch,” Declares President
Steve Young
Jun 24 2007
in·ten·tion: A course of action that one intends to follow, no matter what one actually says.
“We don’t dispute that the ISOO (Information Security Oversight Office) has a different opinion. But let’s be very clear: This executive order was issued by the president, and he knows what his intentions were. He is in compliance with his executive order.”
~ White House Spokesman Tony Fratto
Location: The White House Pressroom
Tony Snow: Good morning. I see we have an overflow crowd today. We intended to build a bigger press room with more chairs, so will those in the back please sit in those seats. First of all, the President would like to send out early birthday wishes to Professor Irwin Corey who will be 94 next week. Helen…
Helen Thomas: Vice President Cheney is refusing to allow an inspection of his office by the National Archives’ Information Security Oversight Office. Isn’t that a clear contempt of President Bush’s own executive order?
Snow: Oh, I’m sorry, Helen. I intended to call on David.
David Gregory: Helen’s question.
Snow: (Sigh) If you actually read the order, the President clearly intended it to only apply to those he intended it to apply to and not have it apply to those who he did not intend it to apply to. All of that, quite intentional.
Gregory: But I did read it and it doesn’t exclude the Executive Branch. Isn’t the Executive Branch part of the government?
Snow: Now you’re just speaking gibberish. But let’s say, for argument’s sake, this (gestures finger quotes) “Executive Branch,” as you call it, is part of the (gestures finger quotes) “government.” If that hypothetical were applied, then sure, the order would apply to the Executive Branch, but not necessarily to those in the Executive Branch.
Gregory: But when the president says “government,” and doesn’t exclude anyone in that government, he’d have to mean all of government, wouldn’t he?
Snow: You’re not saying you can read minds, are you David? Because the only one who can read the President’s mind is the President. And he does so every day after finishing his morning bike ride.
Gregory: But in the President’s order, it distinctly mentions any number of times, that the President and the Vice President fall under this order.
Snow: He also said we would find WMD in Iraq. Just because we didn’t doesn’t mean he didn’t intend to find them there. And if that didn’t raise any red flags I don’t see why this should be any different. Look. When the founding father drew up the two branches of government…
Gregory: Three.
Snow: Alright, I’ll play your little game. Three. But they didn’t intend to have three. Originally there were only two. The Legislative, which was intended to approve of every idea the country’s king offered - much like in President Bush’s first six years.
Gregory: We don’t have a king.
Snow: Sure, David. Sure. The second branch of government was the Judicial, which was to be used whenever President Bush, or any leader, for that matter, was not actually elected. But, as nature intended, the two branches became very fond of each other and with one thing leading to another, soon an adorable bundle of joy, the Executive Branch, was delivered to the country. So you see, it’s not what the founding fathers intended, but it happened anyway.
Gregory: But now you’re just saying the opposite. That there is an Executive Branch.
Snow: Yes and no. But in actuality, no. The President doesn’t argue that there is great disagreement in the country as to whether there is or is not, an Executive Branch, but there is no question that if there is an Executive Branch, it is or is not a necessarily part of the Executive Branch, that may or may not exist.
Ann Compton: The order says that “Our democratic principles require that the American people be informed of the activities of their government.”
Doesn’t the President intend to adhere to his own stated democratic principles?
Snow: His democratic principles, yes. But I’m sure you’ll all agree that everyone has their own concept of “democratic principles.” That’s why we call this a democracy.
Compton: Technically, it’s a republic.
Snow: Not during a time of war. Richard….
Richard Wolfe: Rahm Emanual is threatening to pull the Vice President’s funding if he doesn’t comply with ISOO’s request.
Snow: You know, it’s a lot like when we said that Saddam threw the UN inspectors out of Iraq, when it was actually us who told them to leave. Is there any question that Saddam intended to throw them out sooner or later? The President just didn’t want to wait and see Saddam’s intentions end up being a mushroom cloud. If Representative Emanual intends to undermine the troops and place this country in the middle of a nuclear war, well, perhaps he should just say that.
Wolfe: That has nothing to do with what Emanual said.
Snow: Exactly my point. Terry…
Terry Moran: Henry Waxman says that what the President and Vice President are doing is unconstitutional.
Snow: Guys, how many times do you intend to take out the trash but something comes up and you don’t? I’m sure Congressman Waxman has forgotten more than once. You’re not going to create a constitutional crisis over garbage, are you? Jeez, guys. It’s not like the President were making a signing statement. Look, it’s very similar to when a young man tells his girlfriend’s father that his “intentions are honorable.” Just because he says it doesn’t mean that’s what he intends. If you’re going to hold the President libel for what he says, you better be ready to throw millions of young men in jail just because they want to have a little fun. Think of the President’s executive order as just his way of having a little fun with your daughter. And if you can’t trust the President with your daughter, who can you trust?
The President hopes that you’re all clear on what is just a simple misunderstanding…of yours. At least that’s his intention. Okay. I see lots of hands and I intend to call on everyone of you this morning.
See you tomorrow. ++
Cheney’s Not in the Executive Branch? Sounds Good to Me!
RJ Eskow
Jun 23 2007
By now you’ve heard about Dick Cheney’s fascinating new legal argument that he’s not in the executive branch, so he doesn’t have to comply with executive secrecy rules. I’m not always Rahm Emanuel’s biggest fan, but his plan to cut executive-branch funding for the VP’s office is a very sensible response. On the other hand, let’s not be hasty about this. After all, if Cheney’s not in the Executive Branch he can’t claim executive privilege.
“If he believes his legal case,” Mr. Emanuel wrote in an email, “his office has no business being funded as part of the executive branch.” But imagine how much light we can shed into the dark corners of Mr. Cheney’s office if his argument holds.
Surely you remember that infamous energy task force, the one where Mr. Cheney let his oil industry pals and their lobbyists come in and literally write their own rules? Cheney argued that the public had no right to information about the workings of that task force - because of executive privilege.
How about those executive branch visitor logs we’ve all been dying to see? I’d love to know how much time Jack Abramoff spent in Cheney’s offices, and who he visited there. And, of course, there’s the matter of Scooter Libby. With executive privilege out of the way, we can finally figure out whether there was an “underlying crime” or not. (Extra! Othello exonerated for strangling Desdemona - there was “no underlying crime” of adultery.)
Mr. Emanuel, I respect your smarts and your chutzpah for coming up with this strategy. If for any reason it doesn’t work out, however, here’s your silver lining: A Vice President who’s not in the Executive Branch can’t withhold information from legislators under the separation of powers doctrine.
In fact, here’s an even better idea: Since he says he’s fundamentally a member of the Senate, why not bring him up on Senatorial ethics charges? Let the investigations commence!
This may have seemed like a clever move at the time. Cheney et al. may think the band’s playing “Catch Us If You Can,” but the tune I hear sounds more like “Let The Sun Shine In.” ++
Private Dick, Forever Undercover
Elizabeth Sullivan, The Cleveland Plain Dealer
Sunday, June 24, 2007
It’s lucky for vice presidential secrecy that Dick Cheney joined the legislative ranks only recently. Back in 2001, when Cheney secretly talked energy policy with oil company CEOs, he was a privileged member of the executive branch - as he later argued to the courts.
Energy task force records: sealed.
By 2003, the vice president was keeping his manipulations of pre-Iraq war intelligence quiet by using his chief aide, Lewis “Scooter” Libby, as his front guy. Now that Libby’s probably going to jail because of it, the vice president can’t even be bothered to write a letter of testimonial.
Iraq manipulations: sealed.
Lately, Vice President Cheney has been surfing the waves of government secrecy once again - this time as a member of the legislative branch. At least, that’s the excuse Cheney’s office is using to avoid complying with an executive-branch order intended to safeguard classified material.
For every year since 2003, Cheney has failed to disclose the exact amount and nature of intelligence his office has made secret - or declassified.
Not so coincidentally, that’s the very time frame covered by the Libby investigation.
The Chicago Tribune first reported this last year in a story few noted - apart from the guardians of those documentary secrets within the National Archives.
Now, however, after more than a year of unsuccessful attempts by the archives to extract the required information from the vice president’s office, the case has turned into a full-blown confrontation.
According to Democratic Rep. Henry Waxman of California, who made the blow-up public last week, as tenaciously as the National Archives’ Information Security Oversight Office has pressed for vice presidential compliance, Cheney’s office retaliated just as forcefully.
The vice president is trying to get the archives oversight office abolished.
And Cheney’s office has yet to open its documents to inspection.
The National Archives appealed to the attorney general’s office but, unsurprisingly, has yet to hear back from Alberto Gonzales. Meanwhile, Cheney’s office is trying to close off such an avenue for appeals even as Cheney seeks to have the executive order amended to exempt his documents.
At least the National Archives is finally showing some teeth over document security.
It needed to, after the Sandy Berger debacle.
In the case of President Clinton’s former national security adviser, Berger walked away with little more than a slap on the wrist after repeated, egregious violations of secrecy pledges and rules in his handling of top-secret documents at the archives.
In 2002 and 2003, Berger was preparing to testify to the 9/11 commission. Not only did he purloin top-secret documents and notes from the archives, he later could not account for their whereabouts. Even worse, because the archives had not tagged or chronicled all of the documents Berger reviewed, its staff was unable to say for sure just what had been lost or destroyed.
The inability to reconstruct the exact nature of the security breach was why Berger got off so easy, via a plea agreement that brought him only a fine and probation.
Still, Berger was out of office when he executed his secrecy shuffle.
What’s most striking - and troubling - about the Bush administration is how some of its leading ideological lights repeatedly treat national secrets like personal political real estate.
When John Bolton was undersecretary of state for arms control during the first Bush term, he misused his access to top-secret National Security Agency wire intercepts to praise the cleverness of one of the U.S. officials whose comments had been recorded.
Cheney misused Iraq weapons secrets both to sell the war and then to deflect attention from his role in formulating the sales pitch. Now that he’s been caught hoarding those secrets, he’s misusing his clout to try to sweep aside the officials who are challenging him. ++
High Noon for Justice and the Rule of Law
A BUZZFLASH EDITORIAL
Mon, 06/25/2007
It’s the iconic American Western of one man taking a stand for justice and the rule of law.
It’s his wedding day to a beautiful, pacifist younger bride (Grace Kelly) — and his last day as marshal in a frontier town. Gary Cooper (the laconic, lanky marshal) could leave right then to start a family, and set up a new comfortable life as a store owner.
Some interpret “High Noon” (nominated for seven Academy Awards) as a 1952 allegory of principled defiance against the era of McCarthyism, which foreshadowed the courage of Edward R. Murrow in being a lone man with the bravery to challenge and bring down the thuggish, immoral senator from Wisconsin.
Murrow’s historical March 9, 1954 broadcast began the unraveling of the reign of uncorroborated witch-hunting, anti-Communist fear (and a watershed moment for broadcast journalism in America): “Our working thesis tonight is this question: If this fight against Communism is made a fight against America’s two great political parties, the American people know that one of those parties will be destroyed and the Republic cannot endure very long as a one party system. We applaud that statement and we think Senator McCarthy ought to. He said it, seventeen months ago in Milwaukee.”
It was a brilliant maneuver to hoist the drunken master of intimidation by his own petard. Murrow, like Marshal Will Kane (Cooper) in “High Noon,” was taking on someone who had subdued a nation (as the Miller gang did in “High Noon’s” Hadleyville) with the assertion of raw power not subject to the restraint of truth, due process, justice, or the law.
Murrow closed his opening salvo against McCarthy with this statement:
“The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it — and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars, but in ourselves.’”
In that sense, Murrow was also speaking of the residents of the frontier town of Hadleyville in “High Noon.” Because on the day of Marshal Kane’s (Cooper) wedding and retirement, four killers were returning to avenge the conviction and imprisonment of their leader, just released, who had terrorized the town some years earlier until Kane had arrested and convicted the gang’s leader for murder.
Kane wasn’t looking for trouble, but when Hadleyville was again faced with the violation of the rule of law, Kane couldn’t flee, despite his young bride’s desire to avoid a confrontation.
There are some situations, Kane reasoned, when lawlessness shoves itself in your face — and you have to confront it head on, not run away cowering.
The people of Hadleyville, for one reason or another relating to cowardice and profiteering from the past crime sprees of the outlaws, refuse to assist Kane in battling the criminals, as their leader rides into town on the late morning train.
Kane is left to himself to confront them — and with the unexpected assistance of his young Quaker wife, survives the “High Noon” shootout.
The rule of law prevails.
Such is, if we stretch this analogy, the situation in Washington.
There is no need anymore to investigate the Bush Adminsitration. Their chronic defiance of the rule of law — even the legal requirements that they themselves have set up — their defiance of the Constitution, their failure to implement laws passed by Congress, their perjury, their contempt for justice, their effort to subvert the voting system in the United States, their prosecution of a war based on lies — these and so many more reasons compel the impeachment of Dick Cheney, George W. Bush, and Alberto Gonzales.
The Democrats in Congress may not have the votes to prevail. (The Republicans will have to decide whether they stand up for America or stand with a cabal of crooks.) But, in their lack of effective action, the Democrats are condoning the violation of our nation’s most basic governmental glue: the Constitution and the rule of law.
Gary Cooper (Marshal Kane) wasn’t looking for a confrontation on the day of his marriage and retirement; it came to him — and he knew what he had to do.
What sort of standard are we setting for any American if we allow this administration to continue to so brazenly defy laws and offer us nonsense as an excuse for their illegal behavior? What do we tell defendants? What do we tell our children? That ridiculous and absurd excuses for criminal behavior will be acceptable, and will allow the perpetrators to go free?
Because that is what Congress is permitting the Bush Administration to get away with. The final descent into some sort of absurdist pit of law-breaking and bold defiance of the Constitution — not to mention the threat to our national security — is Dick Cheney’s claim that he does not have to abide by national security guidelines for handling confidential documents because he is not a member of the Executive Branch. When you have attained this level of unaccountable tragic farce, the American system of reasoned government has already become unglued.
Like the residents of Hadleyville, Congress can continue to retreat in endless babble from confronting the lawlessness that has landed on their and our doorsteps. But they do so at grave risk to the foundations of our democracy.
Simply put, unless we have a Marshal Kane to come to our rescue, or unless the Democratic leaders of Congress realize that although they didn’t ask for criminal behavior in the Executive Branch to fall down upon them like a thunderstorm, it has — and they have no choice but to face up to their Constitutional obligations to pursue the removal from office of those who continue to openly, defiantly, and mockingly break the law. Unless such leadership emerges, the fabric of our democracy will unravel.
To avoid such a stand is to cede our country to those individuals who make a mockery of its legal system and Constitutional foundation.
It is to tell present and future generations that the rule of law can be defied with impunity.
This is not a question of Capitol Hill vote counting; it is a question of whether we are going to continue to collectively accept that our legal system holds people accountable for their behavior.
If not, let’s stop pretending that we are a nation of laws, based on the precepts of a Constitution.
The Democrats are not responsible for the actions of this rogue, criminal executive branch; but they are responsible for meeting it head on at “High Noon.” ++
Remember Checks And Balances?
Sharon Bradford Franklin, TomPaine
June 25, 2007
Khaled El-Masri, a German car salesman and father, was on vacation in Macedonia when he was detained by local authorities. According to his sworn declaration, he was later transferred to U.S. authorities, and then beaten, sexually assaulted, drugged and transported to a CIA-run “black site” in Afghanistan. For almost five months, Mr. El-Masri was interrogated and held in a squalid cell without charges. Then, he was abandoned, blindfolded and alone, on a desolate Albanian hilltop more than a month after the CIA realized they had been holding the wrong man.
Although Mr. El-Masri subsequently filed suit seeking to hold U.S. officials accountable for their actions, thus far the U.S. government has refused either to confirm or deny any of his allegations. Rather, his case against the U.S. government was dismissed after the government asserted the “state secrets privilege,” suppressing any evidence or testimony that might have been used to litigate his claim. He is now seeking to appeal his case to the U.S. Supreme Court.
The executive branch has relied upon the state secrets privilege to claim that the disclosure of certain evidence in court would jeopardize national security, and therefore cannot be reviewed by private parties, the attorneys or even the judge. As one might expect, without this evidence cases are usually dismissed.
The Supreme Court first recognized this privilege in 1953 in United States v. Reynolds, when it denied the widows of three civilian Air Force contractors access to an accident report. The Air Force had claimed that the report was confidential, noting that the personnel aboard the plane “were engaged in a highly secret mission of the Air Force.”
When the report surfaced decades later, it became clear that the only sensitive information therein was evidence of negligence by the Air Force that may have caused the men’s deaths.
The lower courts in Reynolds had ordered that the government submit the accident report to the trial court, so it could assess whether the document in fact contained state secrets that could not be disclosed. But the Supreme Court overruled this determination. Sadly, this Supreme Court precedent permitting the executive branch to assert the state secrets privilege without any independent review of the evidence still stands, and judges continue to give the Executive an alarming degree of deference when this privilege is invoked.
The Constitution Project recently brought together a broad, bipartisan coalition of political leaders, policy experts and legal scholars in calling for reform of the privilege. Our Report on the State Secrets Privilege urges Congress or the Supreme Court to clarify the narrow and qualified scope of this privilege so that cases like Mr. El-Masri’s can be litigated.
A court’s acceptance of an executive branch claim of privilege without question undermines the established practices and role of an independent judiciary. Dismissing challenges to executive branch policies outright in the name of national security is unnecessary and erodes individual rights. Although there is a role for the state secrets privilege to prevent disclosure of genuine state secrets to private parties, it is critical that our independent judiciary review such claims and determine when the privilege properly applies. Either the Supreme Court or Congress can cure this problem.
Since the state secrets privilege was first recognized in the Supreme Court’s decision in Reynolds, the Court could revisit this issue to correct and clarify the proper scope of the privilege. As of this writing, Khaled El-Masri is seeking review of his case in the Supreme Court. Hopefully, the Court will accept review of the case, reexamine the scope and meaning of its decision in Reynolds and allow Mr. El-Masri’s case to proceed. Alternatively, since privileges are often created by statute, Congress can and should take steps to make clear that the state secrets privilege is not a license for Executive overreaching. Congress should craft legislation which clarifies that judges, not the executive branch, have the final say as to whether disputed evidence is subject to the state secrets privilege.
Further, the Supreme Court or Congress should make it clear that instead of accepting executive claims as valid on their face, judges can and should privately review evidence allegedly subject to the privilege, if necessary, in chambers—also known as an in camera review. Judges should not accept edited documents or affidavits, statements or declarations prepared by executive officials; courts must review the disputed evidence itself. As the courts have independently examined and assessed classified evidence for decades, we have faith that judges are fully competent to review these claims and balance the rights of individuals with national security interests.
America’s constitutional system of checks and balance depends on independent judicial review of executive branch actions. History has demonstrated, time and again, just how vital independent judicial review is; the executive branch should not be left to police itself.
The Reynolds case is only the beginning of a long list of cases —including those challenging the NSA’s warrantless domestic spying program—in which the government has asserted the state secrets privilege to shield itself from accusations of wrongdoing. Mr. El-Masri’s treatment at the hands of the CIA may yet qualify for a place on that list. The Supreme Court should take Mr. El-Masri’s case and provide him an appropriate remedy.
We cannot allow the executive branch to evade all accountability for embarrassing, illegal or unconstitutional acts by crying “state secrets.” Nor can we allow courts to abdicate their constitutional responsibility to evaluate such claims of privilege. We need to limit the use of the state secrets privilege and restore independent judicial review. It is needed now more than ever. ++
Sharon Bradford Franklin serves as senior counsel at the Constitution Project, an independent think tank in Washington, D.C.
“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007
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June 25th, 2007