Posted by WLS:

The provision was inserted late in the legislative process without any notice or debate, though no one seems to have had much of an objection to it.  

It seems that both the majority and minority leadership in the Senate, along with their counterparts in the House, is concerned about the current makeup of the Supreme Court — especially the unpredictable nature of Justice Kennedy - and the uncertainty as to what the future holds in store in terms of possible appointments by the next President.  To address this issue they chose to insert language into the FISA legislation which states that for the next five years, any litigation involving two or more states shall be submitted to Congress rather than the judiciary, and the outcome of the dispute will be determined by a vote of both houses, with the congressional delegations of each state involved in the dispute disqualified from voting.  The disposition of the dispute as established by the vote must also be agreed to by the President for it to be binding on the states involved. 

I suspect this might have something to do with anticipated future litigation between the states over the issue of recognizing gay marriages from California should the ballot initiative in November fail.  Rather than have this issue submitted to an unpredictable Supreme Court, both parties would rather settle the matter themselves in the House and Senate.  

Interesting.

Clarification:  This is a satirical post.  It raises the same issue as that involved in the argument about whether FISA can work to strip or condition the Executive’s commander in chief power under Article II, and whether the President is obligated to respect and abide by a statute which is contrary to a specific Constitutional provision.  

FISA can no more curtail or condition the President’s role as commander in chief than the Congressa nd President can divest the Supreme Court of original jurisdiction by statute as suggested by this post.  

Yet there are those who continue to insist that the President “broke the law” by not going to the FISC to obtain an warrant to do that which Art. II gives him the power to do without the consent or cooperation of Congress or the Court.

Posted by WLS:

Today the  Washington post and LA times both run stories about the editing of proposed Congressional testimony of federal officials by members of the Vice President’s staff.  The subject of the deleted testimony was the impact on public health posed by global climate change.  The “whistleblower” — a novel description since this subject has been previously reported on – is former EPA deputy associate administrator Jason K. Burnett.   One of the edited officials was Julie Gerberding, the head of the Centers for Disease Control, who intended to testify that climate change is a “serious public health concern.” 

When that testimony was cut, Burnett attempted to send an Email to the White Houe on December 5 announcing EPA’s finding that global warming poses a danger to the public.  Burnett was responsible for climate change issues at EPA.  The WH declined to open Burnett’s email, because such a finding would obligate the agency to issue regulations to limit carbon dioxide emmissions.  The administration does not accept the accuracy of the science behind the issue of global warming, and the role of humans in causing global warming through the emission of carbon dioxide. 

Here is the disclosure for context about Burnett that the WaPo article included:

“The Council on Environmental Quality (CEQ) and the Office of the Vice President (OVP) were seeking deletions to the CDC testimony,” Burnett, 31, a Stanford-trained economist and a Democrat, wrote in response to an inquiry from Boxer’s committee. “CEQ requested that I work with CDC to remove from the testimony any discussion of the human health consequences of climate change.” …  Burnett — a grandson of high-tech entrepreneur David Packard and a member of the Packard Foundation’s board of trustees — has given more than $129,000 to Democratic campaigns in recent years, including $3,600 to presidential candidate Barack Obama (Ill.).

The LAT, on the other hand, had this to say about Burnett:

Burnett resigned as the EPA’s associate deputy administrator last month. He also has contributed $4,600 to Democratic presidential candidate Barack Obama’s campaign….

This disclosure is certainly warranted, but is it sufficient given Burnett’s admitted conduct?  The LAT article describes his effort to hijack administration policy as follows:

The Supreme Court ruled last year that the EPA was required to evaluate whether greenhouse gas emissions posed a risk and, if so, implement regulations on polluters….. In December, Burnett said, he sent the White House an e-mail finding, in response to the Supreme Court ruling, that greenhouse gas emissions pose a risk, a step toward regulation.   

This episode presents an interesting opportunity to consider the theory of the unitary executive.  Simply stated, the theory states that the President, as the only elected official of the Executive Branch of Government, solely possesses the executive power under the Constitution to execute the laws.  This theory would also hold that Congress cannot confer executive power on executive branch officials other than the President since the Constitution vests all executive Power in the President. 

By creating officials and agencies such as EPA, and imposing upon them mandatory obligations such as the one Burnett is attempting to force on the Bush Administration by putting his finding in an email, Congress is actually usurping the executive Power vested in the President by forcing the Administration to do something through an inferior administration official that the elected President is not prepared to do.   

Posted by WLS:

Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA, it occurred to me that there is a fairly simple hypothetical which can be used to explore the view that FISA is an unconstitutional encroachment on the Article II “Commander in Chief” powers of the US.

Lets assume that the Clinton Administration hadn’t been so feckless in its closing months, and that after the bombing of the USS Cole it had followed the advice of Richard Clarke, sought an authorization to use force against Bin Laden, AQ, and the Taliban, and initiated offensive military operations — of whatever type — in Afghanistan for the purpose of dislodging Bin Laden and AQ.  

Lets next assume that part of the offensive operations was an aggressive intelligence collection effort conducted by NSA and DOD which focused on communications between Bin Laden and other AQ actors in Afghanistan on the one hand, and the loose net of affiliate organizations around the world on the other hand.

Lets next assume that the Bush Administration kept the same policy following the election, and remained on the offensive against Bin Laden and AQ, short of an all out invasion of Afghanistan.   That during this effort the intelligence agencies were able to intermittently intercept cell phone transmissions believed to be from Bin Laden and other members of AQ’s leadership.  

We’re still talking about a pre-9/11 timeframe here, and from those interceptions intelligence analysts were convinced there was some type of plot underway inside the US, but the details were not yet known.  But in July 2001, interceptions established a contact between AQ in Afghanistan and Ramzi Binalshibh in Germany.  Binalshibh is identified by intelligence agencies as having been associated with a cell of Islamic radicals in Hamburg, one of whom is Mohammed Atta, who is found to be attending flight school in the US in the summer of 2001, with travel records from various intelligence agencies showing they had traveled to Afghanistan together in 1999.

So, based on this information, in July 2001, NSA and DOD begin intercepting all telephone communications of Binalshibh in Hamburg.  These interceptions are the direct result of battlefield intelligence obtained in Afghanistan, and the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil.

Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States?  Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg.  Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta? 

Posted by WLS:

The majority opinion in Kennedy v. Louisiana (appropriate irony) authored by Justice Kennedy is a stunning exclamation point on the Court’s move this term of impose itself as the unelected sovereign dominant over all things eminating from the political branches of the various governmental entities of the United States of America.   This capstone sentence near the end of the opinion is all you need to read and absorb to fully appreciate the complete absence of guiding constitutional principle underlying the liberals+Kennedy with respect to their view of their place vis-a-vis the  representative democratic branches of the governmental units:  

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape.  Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.  These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.”

Got that?  The “propositions” mentioned are a variety of policy arguments, not one of which has any relationship to the language of the Eighth Amendment which prohibits “cruel and unusual” punishment.  No one “proposition” standing alone makes the death penalty for child rape “cruel and unusual” in a constitutional sense.  But all of them considered together do.  

Their “independent judgment.”   F*ck all those elected officials in whom the voters have vested the authority to exercise judgment on their collective behalf.  Frankly, I can’t believe no Justice in the majority suggested to Kennedy that he remove the “our independent judgment” language.   But, then again, maybe they wanted it exactly the way Kennedy wrote it — no time for subtlety.

A few of the more precious bon mots of enlightenment courtesy of Justice Kennedy:

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional committment to decency and restrait.”

“It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restrait in the application of capital punishment.”

“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakish’”.

“Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional that the death penalty can be expanded to include this offense.”

“It is not at all evident that a child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”

“Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.  The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the in the administration and enforcement of laws proscribing child rape.”

But, lest he be too solicitous of the child victim’s welfare, Kennedy next rips children as testifying witnesses:

“The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.” (Citing the ever reliable National Association of Criminal Defense Lawyers brief.)

“In most cases justice is not served by terminating the life of a perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”  

What a beautiful sentiment.  We as taxpayers pay hundreds of millions of dollars every year to incarcerate pedophiles so that they, with the help of the “system,” might finally understand the error of their ways.

What kind of society is it that wants to cut off such meaninful and important efforts at self-enlightenment by something so barbarian as imposing the death penalty on a man who raped his 8 year old stepdaughter so savagely that a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.

Fortunately for all of us, he might now get the help he was so obviously crying out for courtesy of the Louisiana prison system.

 **Update:  Barack Obama has come out against the Court’s decision today: 

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

I wonder if that means that Obama thinks Roberts and Alito are better models for future Supreme Court appointments than Ginsburg and Breyer? 

[posted by Justin Levine]

In case you missed the Supreme Court decision in Dada v. Mukasey [PDF], Scalia puts on another clinic regarding judicial activism in his dissent.

There have been a lot of attempts recently to distort the meaning of judicial activism, or simply waive the phrase away as supposedly being ‘meaningless’ - but Scalia continues to point the way. (I would dare suggest that people have no real adequate response to Scalia’s challenge, thus they knowingly distort the meaning of judicial activism in order to muddy the issue.)

Admittedly, the issue isn’t always simple (particularly when trying to weigh straightforward textual solutions against non-textual, but long standing precedents) - but that is no reason to equate judicial activism with ‘any decision one happens to disagree with’.

As a starting point, judicial activism is:

(more…)

[posted by Justin Levine]

Another classic dissent. Read the whole thing beginning at pg. 110 of this PDF document of the court’s opinion.

But here is a starting taste, along with the ending paragraph (note how Scalia conspicuously declines to write “I respectfully dissent” as is the usual custom for Justices):

“Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that (more…)

You most certainly did get my attention. Thank you for your wise and insightful concurring [PDF] opinion which should be read by all California bloggers.

Oh, by the way, WTF is up with designating this very important opinion as ‘unpublished’?? Please do what you can to correct this travesty.

Yours Truly,

Justin Levine

[Guest blogger at Patterico.com]

Khalid Sheikh Mohammed was arraigned today in a case that will apparently culminate in a public trial. Jan Crawford Greenburg and Dennis Powell report:

Dressed all in white with large glasses and a long gray beard, the man who imagined the unimaginable appeared at his arraignment today for his role as the alleged mastermind of the Sept. 11 terrorist attacks.

Khalid Sheikh Mohammed, making his first public appearance since he was captured in 2003, was asked by the military judge if he understood that the charges against him could bring the death penalty. Mohammed responded, “That is what I wish. I wish to be martyred” and, he added, “I understand very well.”

Meanwhile, Greenburg has a post at her blog that is, I think, much more personal, direct, and interesting. I found this part fascinating:

It is believed to be the first time the five al-Qaeda suspects have seen each other or spent time together since their capture, and they laughed and gestured at each other at times.

Of the five, only Ramzi Bin al-Shibh was wearing shackles and chained to the floor at his seat. He is the Yemeni who allegedly was supposed to have been a hijacker, but was denied a US visa. In court, he was the most defiant and robust. When the prosecutor announced the charges against him, he turned to the press assembled in the back of the courtroom and smiled broadly and pointed to himself.

I have seen this behavior in criminal courts before: murder defendants laughing it up as a verdict is read that will imprison them for the rest of their lives. Grinning at me and at the victim’s family members.

It’s shocking to see. But it’s just the behavior of gang members.

In some ways, these guys aren’t anything special. They’re garden variety thugs. A public trial may help demystify them.

At the same time, it’s dangerous to underestimate them. Street-level gang members can’t get access to nuclear weapons. Can Al Qaeda? We don’t know, but it’s not impossible.

I’ll say this: I’m very pleased to see Jan Crawford Greenburg covering this. I actually feel like I’ll be getting coverage I can trust.

A panel of the Ninth Circuit today issued a decision regarding the “Don’t Ask, Don’t Tell” policy. The decision addressed an issue that sounds arcane to non-lawyers, but which is, in reality, critical: what is the level of “scrutiny” the courts will apply in examining the policy?

The reason this is important is because the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

This is why it’s so important to decide what level of “scrutiny” a court will give to a particular government action. When the court declares the government’s policy is subject only to “rational basis” scrutiny, the policy is likely to be upheld. When the policy is subjected to “strict scrutiny,” it is likely to be stricken down.

Rational basis = Government action/policy legal
Strict Scrutiny = Government action/policy illegal

Here, the Ninth Circuit looks at the Lawrence v. Texas case, which struck down a law against homosexual sodomy, and tries to decide what level of scrutiny the Supreme Court was applying in that case.

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny — essentially a form a “intermediate scrutiny” — applies to the Don’t Ask, Don’t Tell policy.

You can read the decision here. It is the product of three Democrat-appointed judges: Ronald Gould, a Clinton appointee and the author of the opinion; Susan Graber, a Clinton appointee and the second judge in the majority; and William Canby, a Carter appointee who complained that the other two judges didn’t go far enough, and should have applied “strict scrutiny.”

(I can’t wait to read the L.A. Times article to see whether it reports that all three judges are Democrat appointees.)

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope — but don’t let its seeming modesty fool you. It’s a big step.

This is a big decision. It remains to be seen whether it will be recognized as such.

P.S. For what it’s worth, I think “Don’t Ask, Don’t Tell” is a ridiculous policy that should be overturned yesterday. But, like gay marriage, I don’t want to see that done through judicial sleight of hand. I want society to accept both policies. I think we’re on the way. In my view, the courts are only interfering with what is otherwise the natural evolution of people’s opinions, as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.

[posted by Justin Levine]

Let history record that I was the first blogger to point out that the California gay marriage decision was far more significant than many first realized due to the fact that it labeled homosexuals as a “suspect” class entitled to “strict scrutiny” under an Equal Protection Clause analysis (essentially treating laws that discriminate against homosexuals the same way as it would treat laws discriminating against racial minorities).

But now that Marty Lederman has followed my lead on this, it seems to be getting all sorts of attention. Alas, my legal genius seems destined to continue in relative anonymity in the blogosphere. [Hey Court TV...Call my agent!]

But seriously, this is a vital aspect of the decision that has been largely drowned out in the more immediate political debate over the marriage issue. It may have a far reaching impact that has yet to be studied in legal circles.

[Justin Levine]

[posted by Justin Levine]

It is a lengthy [PDF] decision. Vote was 4 to 3.

The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court - essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.]

Since California has already passed numerous legislative statutes protecting homosexuals in terms of housing, workplace, etc., this broad holding probably won’t change the practical legal landscape in the state all that much. However, this ruling indicates that even if those legislative statutes were somehow repealed, the anti-discrimination rights of homosexuals would still be retained constitutionally.

As with other court decisions on this issue (both in California and many other states), the dissenting opinions make for interesting reading and are sure to inspire another round of debate over the broader issue of judicial activism (apart from the specific political debate over gay marriage).

Updated note: The City of San Francisco performed marriage ceremonies for roughly 4,000 gay/lesbian couples, before being enjoined by the courts. The state Supreme Court originally invalidated those marriages without ruling on the constitutionality of gay marriage itself. [It merely held that San Fransisco had no power to unilaterally offer gay marriage ceremonies before the courts had ruled on the question.] As Justice Kennard’s concurring opinion underscores [starting on pg. 122 of the PDF decision], those 4,000+ marriages do not suddenly become valid with this decision. Those couples will have to go through the ceremony process again, presumably resulting in a double-dip windfall for the state in marriage license fees….

Second updated note: While I have no problems with the result of this decision as a matter of social policy, it remains problematic in terms of the judicial activism debate. In addition to the dissenting opinions, you might want to pay particular attention to footnote # 52 in the majority’s decision (starting on pg. 79 of the PDF document) which underscores the problem. Ironically, the majority doesn’t seem to grasp the obvious contradictions and tensions in their reasoning that footnote 52 presents. Merely citing past court decisions is not a valid substitute for reasoning in this instance, nor is it adequate to explain the blatant double standards in social policy (beyond the personal whims and political preferences of the Justices).

[Justin Levine]

UPDATE BY PATTERICO: Comments are now enabled. I don’t know why they were turned off before.

[Guest post by DRJ]

AboveTheLaw reprints a not-to-be-missed fond farewell from a staff/office clerk at the Reed Smith law firm - apparently in the San Francisco office - to his/her fellow employees.

It begins “My fellow Americans” and continues by describing how the author will be attending American University’s School of International Service in Washington, D.C., “pursuing a combined Master’s Degree in Int’l Politics and Int’l Peace and Conflict Resolution with concentrations in Int’l Security and Human Rights. In addition, I will also be working towards a Professional Certificate in Peacebuilding.”

Then, in the “distant future” when the author has solved all America’s foreign policy problems, s/he will then:

“… return my attention towards our domestic issues like health care and education. The interests of the American people will become my top priority and someday, I will be looking out for all of you.”

I guess we don’t need President Obama now that we have this former Reed Smith clerk looking out for us.

– DRJ