Friday, August 25, 2006
Keep Nukes Off the Rhetorical Table
It's plainly time to add pre-emptive nuclear annihilation of entire countries to the list of policies (along with the use of torture as an interrogation tool, rendition, laweless detention of U.S. citizens, and presidential law-breaking) which are so self-evidently contrary to the defining values of our country that they used to be taboo even to advocate, but are now commonly accepted policies among many mainstream pundits, including those who most ardently support the current president.Agreed.
Pennsylvania Supreme Court Leaves Intact Pro-Policyholder Decision Regarding Insurance Company Bad Faith
(from an Anderson Kill press release)
In Hollock v. Erie Insurance Exchange, the Pennsylvania Supreme Court dismissed as “improvidently granted” the appeal of Erie Insurance Exchange to one of the leading cases nationwide regarding punitive damages and an insurance company’s duty of good faith during litigation with its policyholder.
The Pennsylvania Supreme Court’s decision in Hollock v. Erie Insurance Exchange maintains the Superior Court’s decision that an insurance company’s duty of good faith and fair dealing continues through litigation. The decision also means that an award of $2.8 million in punitive damages will stand.
In an en banc 8-2 decision issued on January 22, 2004, the Pennsylvania Superior Court addressed issues of bad faith and punitive damages. Pennsylvania has a statute that allows policyholders to sue for insurance company bad faith. Known as the Bad Faith Statute, the law allows an award of punitive damages, interest, and attorneys’ fees. The Pennsylvania Superior Court affirmed an award of $2.8 million in punitive damages and $278,825 for attorneys’ fees, interest, and costs, approximately a 10:1 ratio to compensatory damages.
The Superior Court ruled that the conduct of Erie Insurance Exchange in the bad faith litigation could be considered in determining whether Erie acted in bad faith toward its policyholder, Jean Hollock. The trial court had found that the conduct of Erie’s witnesses at trial was “an intentional attempt to conceal, hide or otherwise cover-up the conduct of Erie employees.” The Superior Court ruled that “it was appropriate for the trial court to consider Erie’s continued conduct in relation to its insured” because the statutory remedy was designed to remedy all instances of insurance company bad faith, whether occurring before, during or after litigation.
The Superior Court also ruled that, in order to recover punitive damages under the Bad Faith Statute, a policyholder need not prove anything more than bad faith. The policyholder need not also prove malice, vindictiveness, or a wanton disregard of the rights of others, which may be required to obtain punitive damages in a case of common law fraud in Pennsylvania.
Finally, the Superior Court considered whether the amount of punitive damages violated substantive due process under the standards enunciated by the United States Supreme Court in State Farm v. Campbell. Noting the trial court’s findings that Erie was “a company run [amok]” whose supervisory personnel “sanction[ed] deceit” in the service of a “corporate belief that it is acceptable to tell a little lie so long as no one really gets hurt,” the Superior Court found Erie’s conduct to be reprehensible. The Superior Court also found the 10:1 ratio appropriate because (1) the compensatory damages contained no punitive element; (2) Erie has significant wealth; (3) the compensatory award was limited; (4) Erie engaged in reprehensible conduct; and (5) Erie faced potentially harsh civil penalties for its misconduct, including the suspension or revocation of Erie’s license to sell insurance in Pennsylvania.
The Hollock decision will provide important protection for policyholders in Pennsylvania. Timothy P. Law, of Anderson Kill & Olick’s Philadelphia office, who submitted an amicus brief on behalf of United Policyholders in support of Ms. Hollock, commented: “The Pennsylvania Supreme Court’s ruling leaving the Superior Court decision intact ensures that insurance companies will not be permitted to disregard their obligations to their policyholders when policyholders fight back in court against insurance companies. The courts in Pennsylvania take very seriously the obligations of insurance companies to fulfill their promises with utmost good faith and diligence and to treat their customers with respect. When insurance companies act in bad faith, they are on notice that very significant punitive damages may result.”
United Policyholders was founded in 1991 as a non-profit organization dedicated to educating the public on insurance issues and consumer rights. Timothy P. Law of Anderson Kill & Olick, P.C., in Philadelphia, Pennsylvania, represented United Policyholders. Anderson Kill & Olick is a national law firm with offices in New York, Philadelphia, Washington, Chicago, and Newark, NJ. Anderson Kill & Olick regularly represents policyholders in insurance disputes, including those involving insurance company bad faith.
Thursday, August 24, 2006
Debating the Merits of the Recent Wiretapping Decision
Most readers of this site are already aware of the Aug. 17 decision in the Eastern District of Michigan, ACLU v. NSA, in which U.S. District Judge Anna Diggs Taylor struck down as illegal and unconstitutional the National Security Agency's warrantless wiretapping program confirmed to exist by President Bush. According to Taylor, the plaintiffs "prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."
The column links to online commentary from various attorneys concerning the merits of the decision, including Kevin A. Thompson at "Cyber Law Central", Eugene Volokh at the "Volokh Conspiracy", Scott Lemieux at "Lawyers, Guns & Money", Bryan Cunningham at the "National Review Online", Julian Ku at "Opinio Juris", Glenn Greenwald at "Unclaimed Territory", Jack Balkin at "Balkinization", Laurence Tribe also at Balkinization, Peter Shane at "Jurist", and Randy Gainer at the "Privacy and Security Law Blog".
Read the article by clicking here.
How Insurance Companies Put Profits Over Policyholders
People Over Profits, a website sponsored by the Association of Trial Lawyers of America (ATLA) has issued a report titled Pattern of Greed: How Insurance Companies Put Profits Over Policyholders (.pdf).
Wednesday, August 23, 2006
Direct Proof of Dark Matter
NASA Finds Direct Proof of Dark Matter:
Dark matter and normal matter have been wrenched apart by the tremendous collision of two large clusters of galaxies. The discovery, using NASA's Chandra X-ray Observatory and other telescopes, gives direct evidence for the existence of dark matter.
"This is the most energetic cosmic event, besides the Big Bang, which we know about," said team member Maxim Markevitch of the Harvard-Smithsonian Center for Astrophysics in Cambridge, Mass.
These observations provide the strongest evidence yet that most of the matter in the universe is dark.
Iraq Had Nothing to do with September 11 and Nobody in the Bush Administration Ever Said Otherwise
BUSH: The terrorists attacked us and killed 3,000 of our citizens before we started the freedom agenda in the Middle East.The "freedom agenda"? Let's ignore that one for now. Paul Kiel at TPM Muckraker takes issue with the President's assertion that "nobody's ever suggested in this administration that Saddam Hussein ordered the attacks":
QUESTION: What did Iraq have to do with it?
BUSH: What did Iraq have to do with what?
QUESTION: The attack on the World Trade Center.
BUSH: Nothing. Except it’s part of — and nobody has suggested in this administration that Saddam Hussein ordered the attack. Iraq was a — Iraq — the lesson of September 11th is take threats before they fully materialize, Ken. Nobody’s ever suggested that the attacks of September the 11th were ordered by Iraq.
That's technically true -- but distorts the truth. In fact, his administration has repeatedly asserted the falsehood that Saddam was somehow involved with the 9/11 attacks.
That's undeniable. As Josh noted back in November, Vice President Cheney did suggest on numerous occasions, most notably on Meet the Press in September 2002, that Iraq might have been involved in the attacks:VICE PRES. CHENEY: I'm not here today to make a specific allegation that Iraq was somehow responsible for 9/11. I can't say that. On the other hand, since we did that interview, new information has come to light. And we spent time looking at that relationship between Iraq, on the one hand, and the al-Qaeda organization on the other. And there has been reporting that suggests that there have been a number of contacts over the years. We've seen in connection with the hijackers, of course, Mohamed Atta, who was the lead hijacker, did apparently travel to Prague on a number of occasions. And on at least one occasion, we have reporting that places him in Prague with a senior Iraqi intelligence official a few months before the attack on the World Trade Center. The debates about, you know, was he there or wasn't he there, again, it's the intelligence business.
Mr. RUSSERT: What does the CIA say about that? Is it credible?
VICE PRES. CHENEY: It's credible. But, you know, I think a way to put it would be it's unconfirmed at this point. We've got...
Bill in Portland Maine documents more instances:
September 12, 2001-December 11, 2001:Well, if it's not 9/11 and it's not WMDs, then we still get to try out the "domino theory" of democracy for over two more years:We know from Richard Clarke's testimony and other sources that administration officials, including Bush himself, started asking the counterterrorism chief to find an Iraqi link to 9-11 from the day following the attacks. On December 11, 2001--- right around the time bin Laden began his escape, possibly the very day---Vice President Dick Cheney told FOX News, "If I were Saddam Hussein, I'd be thinking very carefully about the future, and I'd be looking very closely to see what happened to the Taliban in Afghanistan."October 28-November 10, 2002:Bush's comments about Saddam Hussein, each from a different speech:December 17, 2003:
"This is a person who has had contacts with al Qaeda."
"He's got connections with al Qaeda."
"This is a guy who has had connections with these shadowy terrorist networks."
"We know he's got ties with al Qaeda."
"We know that he's had connections with al Qaeda."
"He's had connections with shadowy terrorist networks like al Qaeda."
"We know that he has had contacts with terrorist networks like al Qaeda."
"This is a man who has had contacts with al Qaeda."
"This is a man who has had al Qaeda connections."
"He's had contacts with al Qaeda."
"This is a man who has got connections with al Qaeda."[T]he administration's attempts to tie Saddam to the terrorist attacks of Sept. 11...worked so well that nearly 70 percent of Americans believed Saddam was "personally involved" in the attacks.March 19, 2003:
On March 21, two days after announcing the invasion, Bush wrote a letter to congressional leaders in which he said: "The use of armed force against Iraq is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001."U.S. President George W. Bush sent Congress a formal justification for invading Iraq Wednesday, citing the attacks on the U.S. on Sept. 11, 2001.September 16, 2003:Vice President Dick Cheney, anxious to defend the White House foreign policy amid ongoing violence in Iraq, stunned intelligence analysts and even members of his own administration this week by failing to dismiss a widely discredited claim: that Saddam Hussein might have played a role in the Sept. 11 attacks.June 18, 2004:President Bush yesterday defended his assertions that there was a relationship between Saddam Hussein's Iraq and Osama bin Laden's al Qaeda, putting him at odds with this week's finding of the bipartisan Sept. 11 commission. "The reason I keep insisting that there was a relationship between Iraq and Saddam and al Qaeda [is] because there was a relationship between Iraq and al Qaeda."June 29, 2005:-Bush slammed for Iraq link to 9/11-
August 21, 2006:Q What did Iraq have to do with that?You don't say.
THE PRESIDENT: What did Iraq have to do with what?
Q The attack on the World Trade Center.
THE PRESIDENT: Nothing!! [...] Nobody has ever suggested that the attacks of September the 11th were ordered by Iraq.
The strategy is to help the Iraqi people achieve the objectives and dreams which is a democratic society. That’s the strategy. The tactics — now — either you say yes it’s important we stay there and get it done or we leave. We’re not leaving so long as I’m the president. That would be a huge mistake. It would send an unbelievably you know terrible signal to reformers across the region. It would say we’ve abandoned our desire to change the conditions that create terror.George W. Bush, Press Conference, August 21, 2006
Dan Froomkin points out that while Bush disowned one of his favorite justifications for his war, he shamelessly created a new one in almost the same breath, just in time for the midterm elections:
It's ironic that at the same press conference where President Bush flatly acknowledged that there was no link between Saddam Hussein and 9/11, he was putting forth -- largely unchallenged -- a new and equally specious linkage between Iraq and terror.Now that the freedom agenda is on the march in Iraq, Sy Hersh reports on the plans for the war on the next Freedom Domino:
Bush's new assertion -- and it is apparently going to be his central message in the run-up to the November elections -- is that pulling out of Iraq would embolden terrorists and lead them to strike here again.
It's a politically potent message, that's for sure. But the more you know about what's really going on in Iraq, the less sense it makes.
Most of the violence in Iraq today has little if anything to do with al-Qaeda or the global jihad; it involves rival Muslim sects killing each other and, all too often, American troops caught in the middle.
National security experts overwhelmingly see Iraq not as a killing zone for terrorists, but as an incubator -- both because the occupation arouses anti-American sentiment among many Muslims and because the current lawless violence makes for a perfect training ground in terror tactics.
Indeed, there's a powerful argument to be made that leaving Iraq would make the American public safer. It certainly would put an end to the horrible daily toll on Americans in uniform.
The Pentagon consultant told me that intelligence about Hezbollah and Iran is being mishandled by the White House the same way intelligence had been when, in 2002 and early 2003, the Administration was making the case that Iraq had weapons of mass destruction. “The big complaint now in the intelligence community is that all of the important stuff is being sent directly to the top—at the insistence of the White House—and not being analyzed at all, or scarcely,” he said. “It’s an awful policy and violates all of the N.S.A.’s strictures, and if you complain about it you’re out,” he said. “Cheney had a strong hand in this.”Sounds like deja vu all over again. Remember this one? Or this?
Saturday, August 19, 2006
Debating the Merits of Judge Taylor's Decision on Illegal Wiretapping
Publius: "I hate to say it because I’m sympathetic to the result, but from a legally technical standpoint, this opinion is premature, unsupported, and in violation of elementary civil procedure."
Scott Lemieux: "Even if we assume that a summary judgment was defensible with respect to the violation of FISA--and given Hamdan, the administration's argument is unserious--I just can't agree that the First and Fourth Amendment arguments are so unambiguous as to make a decision before during pleadings appropriate."
Bryan Cunningham of National Review: "Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain."
Prof. Volokh (again): "It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a 'hard-left' view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal."
Glenn Greenwald: "[B]etween Anna Diggs Taylor's opinion-writing abilities and the fact that we have a President who is systematically violating the law becuase he thinks he can, it is not a difficult challenge to see which is the most important problem."
Lambert at Corrente: "[D]on’t pop the champagne just yet; no triumphalism is warranted . . . . The bad news: The key component of Bush’s twentyfirst century power grab—the NSA’s datamining program that reads all your mail, all your searches, and this blog—is left in place by Judge Taylor’s decision. Worse, the court’s reasoning encourages the Bush administration to ratchet up its campaign to suppress the last of remnant of a free press and ratf*** or blackmail anyone who opposes them."
Prof. Jack Balkin: "Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal. . . . Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal. Judge Taylor's opinion did both of these things in her opinion."
Greenwald (again): "The army of legal 'scholars' who have spent the last couple of days patronizingly dismissing the Judge's decision have pretty substantial argumentative holes and misunderstandings of their own. . . . It is hardly surprising -- and nobody has any ground to complain -- that the court did not address non-existent arguments or arguments which were made in only the most cursory manner."
Jeff Nye: "Now for the next question: How will we know whether the illegal spying has stopped?"
I forgot the President: "I would say that those who herald this decision simply do not understand the nature of the world in which we live. I strongly disagree with that decision, strongly disagree."
Which deserves a word from Sen. Russ Feingold: "The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA’s warrantless wiretapping program."
Swiftboating the Fourth Amendment
Thursday, August 17, 2006
The Illegal NSA Program Is Found to Be Illegal
DETROIT - A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.Glenn Greenwald has analysis of the opinion here.
U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.
“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.
Judge Anna Diggs Taylor's opinion can be found here, and the order enjoining the program here.
A quick review of the opinion shows that in Section 2, the government's assertion of the so-called "states secret doctrine" (discussed previously here, here, and here) was rejected, largely because the program was already confirmed to exist by the President, and therefore cannot be a "state secret". The related data-mining program under which the NSA has allegedly obtained telephone and internet records of millions of Americans was dismissed because it has not yet been confirmed to exist by the government.
In Section 3, the standing issue (previously discussed here) was resolved in favor of the plaintiffs despite the lack of knowledge of who exactly has been spied on. Plaintiffs, who include attorneys, journalists and scholars who make confidential overseas telephone calls in the course of their professional responsibilities, suffered concrete and particularized injury in that their knowledge of the ongoing and admitted surveillance "has chilled their sources, clients, and potential witnesses from communicating with them." They would be "significantly crippled . . . in their ability to report the news and competently and effectively represent their clients." Further, the Court found:
that the injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.” The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks. The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely. Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging “actual or threatened injury” as a result of Defendants’ conduct.Moreover, if the Court refused to consider the Plaintiffs' case based on a technicality like standing,
the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] ... into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).Section 4 provides a history of electronic surveillance activities in America, including the events leading to the Church Committee and the enactment of FISA, the law broken by the Administration. As the Judge noted:
Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.
In 1976 the Congressional “Church Committee” disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses, and in 1978 Congress enacted the FISA." FISA, which "was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment" is the "background" under which the President chose to secretly surveil Americans without FISA warrants.The Fourth Amendment, which prohibits unreasonable searches and seizures, discussed in Section 5, "was adopted to assure that Executive abuses of the power to search would not continue in our new nation," as they had under the authority of England. FISA was a concession between Fourth Amendment concerns and the needs of the Executive to engage in surveillance by providing oversight to prevent abuse:
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.The First Amendment is also implicated by the President's secret illegal wiretapping program, as discussed in Section 6. The speech of people engaged in telephone conversations overseas has been chilled by the knowledge that no overseas conversation is confidential. As the Judge puts it: "The President of the United States, a creature of the same Constitution which gave us these
All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
The President of the United States is himself created by that same Constitution.
Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."
The President's violation of Separation of Powers principles, discussed in Section 7, clearly offended the Court. It's curious that Congress has not taken umbrage itself:
The Constitution of the United States provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .” It further provides that “[t]he executive Power shall be vested in a President of the United States of America.” And that “. . . he shall take care that the laws be faithfully executed . . . .The Court spends little time dismissing the Government's specious argument that the Authorization for the Use of Military Force authorized the warrantless surveillance at issue.
In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.
. . .
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period.
First, this court must note that the AUMF says nothing whatsoever of intelligence orFurther, "[e]ven if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine."
surveillance. The government argues that such authority must be implied. Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable. Indeed, the government here claims that the AUMF has by implication granted its TSP authority for more than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such a Declaration.
FISA’s history and content, detailed above, are highly specific in their requirements, and the AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504 U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.” Id. at 384. The implication argued by Defendants, therefore,
cannot be made by this court.
The President's assertion that he has "inherent power" to violate laws of Congress like FISA is dealt with in Section 9:
Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.
The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.
We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and
people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.
. . .
The argument that inherent powers justify the program here in litigation must fail.
In her conclusion, the Court states that any irreparable injury sustained by the Government by issuing the injunction "may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary."
Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264
Further thoughts from Jack Balkin.
The ACS Blog has its own analysis, as well as some unfortunate links to the other side of the aisle: "The National Review's Corner calls this a "TERRORIST FRIENDLY RULING," and Red State says that democracy is a 'suicide pact.'"
Sunday, August 13, 2006
Your So-Called Liberal Media at Work
Apparently though, it's all an issue of "fairness":
"Holding a fresh draft of the story just days before the election also was an issue of fairness, Mr. Keller said. I agree that candidates affected by a negative article deserve to have time — several days to a week — to get their response disseminated before voters head to the polls."All the news that's fit to print (unless it's an article about Presidential lawbreaking and there's not enough time for the President's PR team to spin it)
Tuesday, August 01, 2006
Conyers: Bush Violated 26 Laws
Justin Rood at TPM Muckraker quotes from an unreleased report from the House Judiciary Committee Democrats. In this update to the Dems' December 2005 report, "A Constitution in Crisis," Conyers says, "The misconduct I have found is not only serious, but widespread":
The laws implicated by the Administration’s actions include federal laws against making false statements to congress [sic]; federal laws and international treaties prohibiting torture and cruel, inhuman, and degrading treatment; federal laws concerning retaliating against witnesses and other government employees; Executive Orders concerning leaking and other misuse of intelligence; federal regulations and ethical requirements governing conflicts of interest; the Foreign Intelligence Surveillance Act; communications privacy laws; the National Security Act; and the Fourth Amendment.Rood notes that Conyers is not in a rush to impeach, just "a slow walk."
What's wrong with a little terrorism now and then?
So is it impolite to point it out and call "foul" when a popular American commentator suggests casual war crimes?"Until civilians -- frankly, I'm not sure how many of them are actually just innocent little civilians running around versus active Hezbo types, particularly the men -- but until those civilians start paying a price for propping up these kinds of regimes, it's not going to end, folks. What do you mean, civilians start paying a price? I just ask you to consult history for the answer to that.”Rush LimbaughOn the Qana MassacreJuly 31, 2006"We declared jihad against the US government, because the US government is unjust, criminal and tyrannical. It has committed acts that are extremely unjust, hideous and criminal . . . As for what you asked regarding the American people, they are not exonerated from responsibility, because they chose this government and voted for it despite their knowledge of its crimes in Palestine, Lebanon, Iraq and in other places."
Osama bin LadenOn His Fatwa Against AmericaMarch 1997
Prof. Dershowitz? What do you think?
THE NEWS IS filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?Interesting question. Mr. Limbaugh was just talking about that. But what were you going to say?
We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality." Though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished.Hmm. How does this work in application?
The Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit. Some — those who cannot leave on their own — should be counted among the innocent victims.Well. That's an interesting view now, isn't it?
If the media were to adopt this "continuum," it would be informative to learn how many of the "civilian casualties" fall closer to the line of complicity and how many fall closer to the line of innocence.
Every civilian death is a tragedy, but some are more tragic than others.
Here's a quote from Tristero, quoting John Podhoretz:
Apparently, when John Podhoretz read Heart of Darkness he came to the conclusion that Kurtz had the right attitude:Not trusting an appeal to human dignity as sufficing to rebut these "arguments", Kevin Drum suggests a historical lesson: the Soviets' romp through Afghanistan. Remember how successful that was? After quoting one of the many historical texts documenting the Soviets' extensive practice collective punishment, "rubblization" and "migratory genocide", he outlines four obvious lessons worth quoting in full:What if the tactical mistake we made in Iraq was that we didn't kill enough Sunnis in the early going to intimidate them and make them so afraid of us they would go along with anything? Wasn't the survival of Sunni men between the ages of 15 and 35 the reason there was an insurgency and the basic cause of the sectarian violence now?In other words, as Kurtz memorably wrote, "Exterminate all the brutes."
1. At the time, the United States was horrified by the Soviet brutality and genocide in Afghanistan. Remember?I'll give the last word to Gideon Levy in Haaretz, also via Billmon:
2. It didn't work. The Soviets were defeated and left Afghanistan in 1989.
3. The Soviet campaign led fairly directly to the creation of al-Qaeda and the international jihadist movement. It's fashionable these days to suggest that the United States itself is to blame for the founding of al-Qaeda because we're the ones who armed the mujahidin, but that's far too facile. We may have helped things along, but it was the unimaginably brutal Soviet campaign that radicalized Afghanistan and rallied the jihadist community in the first place.
The fight against Islamic jihadism is essentially a vast, global counterinsurgency, something that the United States is lousy at. But we'd better get good at it fast, and the first step is to discard the fatuous notion that more violence is the obvious answer when the current amount of violence isn't doing the job. History suggests very strongly that the truth is exactly the opposite.
Since we've grown accustomed to thinking collective punishment a legitimate weapon, it is no wonder no debate has sparked here over the cruel punishment of Lebanon for Hezbollah's actions. If it was okay in Nablus, why not Beirut? The only criticism being heard about this war is over tactics. Everyone is a general now and they are mostly pushing the IDF to deepen its activities. Commentators, ex-generals and politicians compete at raising the stakes with extreme proposals.
Haim Ramon "doesn't understand" why there is still electricity in Baalbek; Eli Yishai proposes turning south Lebanon into a "sandbox"; Yoav Limor, a Channel 1 military correspondent, proposes an exhibition of Hezbollah corpses and the next day to conduct a parade of prisoners in their underwear, "to strengthen the home front's morale."
It's not difficult to guess what we would think about an Arab TV station whose commentators would say something like that, but another few casualties or failures by the IDF, and Limor's proposal will be implemented. Is there any better sign of how we have lost our senses and our humanity?
Chauvinism and an appetite for vengeance are raising their heads. If two weeks ago only lunatics such as Safed Rabbi Shmuel Eliyahu spoke about "wiping out every village where a Katyusha is fired," now a senior officer in the IDF speaks that way in Yedioth Aharonoth's main headlines. Lebanese villages may not have been wiped out yet, but we have long since wiped out our own red lines.
Cutting the Minimum Wage
Labor law blogger Nathan Newman discusses the GOP's "minimum wage" bill, widely noted for providing hundreds of dollars for the lowest earners and huge tax cuts for the super rich. He points out another poison pill built into it:
[T]he bill will actually CUT wages for workers in a number of states by preempting state minimum wage laws for tipped workers. (Link and provision courtesy of the National Restaurant Association) So Paris Hilton's tax cut is going to be coming directly out of the lower wages for tipped workers in California and a number of others states.
. . .
The federal minimum wage is explicit that states and local governments are free to create higher minimum wage rates than the federal level for any and all groups of workers. While the federal minimum wage allows employers to pay a lower wage to tipped workers, a number of states have eliminated this so-called tip credit on the assumption that consumers pay tips not to subsidize low-wage employers but to actually reward service.
But the new House bill would preempt those state laws and actually cut wages for tipped workers in states like California, Oregon and Washington where tipped workers would see a lower minimum wage rate imposed compared to what they were guaranteed under state law.
This would be an unprecedented move by the federal government to preempt state minimum wage laws. Not only would it hurt tipped workers, it would set a precedent for conservatives to try to preempt all minimum wage rates higher than the federal level.