Alana, one of the reasons you suggest for the improbability of Jonathan Pollard’s release is the public nature of the campaign to free him, since such a prisoner release would typically be done with arguments behind closed doors.
But arguably, a public debate is the only way in which a Pollard release would become proper, because public discussion is necessary before such a step occurs. The whole world is watching, so to speak.
In an editorial today entitled “Netanyahu’s Plea for Pollard, the New York Sun provides a useful addition to the public debate, focusing on a “magnificent dissent” by Judge Stephen Williams in the 1992 case in which the Court of Appeals rejected Pollard’s plea for a new sentencing hearing:
It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. … But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.
… [Judge Williams] was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams’s dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.
The Sun covers the arguments made by both sides in that case, and concludes that there was a miscarriage in the sentencing proceeding whose correction is long overdue after Pollard has served nearly 25 years. For those still seeking to make up their minds, the Sun’s review is worth reading.
The Ninth Circuit is known for its judicial adventurism (“activism” doesn’t begin to describe it) and the high reversal rate in the Supreme Court of its decisions. So this comes as a mild surprise:
A federal appeals court put same-sex weddings in California on hold indefinitely Monday while it considers the constitutionality of the state’s gay marriage ban.
The decision, issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals, trumped a lower court judge’s order that would have allowed county clerks to begin issuing marriage licenses to same-sex couples on Wednesday.
But the plaintiffs (who sought Prop. 8′s invalidation) were pleased with the expedited briefing schedule that provides for oral arguments the week of December 6. And this may very well not end with the Ninth Circuit. It seems the sort of case, one with exceptional and long-range implications, that the Supreme Court would take, regardless of which way the Ninth Circuit rules. We then will see how consequential was the 2008 election and the appointment of two liberal justices that followed.
Most of the domestic agenda pushed by Obama is reversible or may never go into effect if the 2010 and 2012 elections put Republicans back in power. But Supreme Court appointments, especially since presidents started appointing youthful justices, last a very long time, and the handiwork of the appointees is difficult to reverse. We will get a glimpse of just how influential the Obama justices will be.
Kudos to the D.C. Circuit Court of Appeals for overturning a lower court’s ruling according to which some detainees being held at the Bagram detention facility in Afghanistan were entitled to habeas corpus hearings. Federal Judge John Bates’s ruling had applied only to non-Afghanis, but it is not hard to imagine that if his ruling had been allowed to stand, it would have led to the extension of criminal-justice protections to all suspected terrorists held in American detention facilities overseas.
That would have made it extraordinarily hard to wage war on terrorism, or whatever it’s being called this week. It is simply impossible to apply domestic standards of civil liberties to a foreign battlefield — not if you want to be able to defeat ruthless organizations like al-Qaeda. The Obama administration deserves credit for recognizing that and for fighting Judge Bates’s misguided decision. Credit also goes, of course, to the three-judge panel of the D.C. court for unanimously overturning his ruling.
The fact that the appeals-court decision came from a conservative judge (David Sentelle) and two liberals (Harry Edwards and David Tatel) means that it is unlikely to be overturned by the full court or by the Supreme Court. That’s a victory for the good guys: the men and women of the military, intelligence, and law-enforcement services, who risk their lives to capture dangerous extremists and whose work would be for naught if the courts created a revolving door for detainees.
The Obama administration came into office convinced that the Bush approach to fighting terrorism was flawed and that instead we could apply criminal-justice rules in the war against Islamic terrorism. It proved unworkable. Now the administration is in a muddle — trying to alter a criminal-justice model that plainly doesn’t work but misunderstanding the legal landscape and the alternatives they have.
Bill Burck and Dana Perino explain that by suggesting that Miranda rules need to be altered, Eric Holder has in essence confessed to error:
The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.
This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation.
Burck and Perino make a key point: we can designate even U.S. citizens to be enemy combatants. (“No less an authority than the U.S. Supreme Court, in Hamdi v. Rumsfeld (2004), resolved this question: The president has the authority to hold even U.S. citizens as enemy combatants if he believes they are working with the Taliban, al Qaeda or associated terrorist groups.”) This is probably true even if the U.S. citizen is on U.S. soil (“the federal Court of Appeals for the Fourth Circuit answered in the affirmative in Padilla v. Hanft“).
So we have an administration that in all its condescension and criticism of the prior administration came up with a flawed alternative but that still lacks a full grasp of the alternatives. How could this be? Perhaps they are getting terrible advice from the Justice Department. One wonders what Elena Kagan thinks of all this. She, of course, is part of that brain trust. Maybe she should answer some tough questions at her confirmation hearing, starting with her views on what existing law says about terror suspects. Her colleagues might find it enlightening — provided she knows the law better than Holder.
Ramesh Ponnuru makes an excellent point:
Elena Kagan helped to keep military recruiters from having equal access to the Harvard campus — based on what she called “the military’s policy” on don’t ask, don’t tell. When Congress voted to deny Defense Department funds to universities that discriminate against the military, she joined an effort to fight the law (called the Solomon amendment) in court. In effect, she was arguing that the school had a constitutional right to get government funding while discriminating against military recruiters. The Supreme Court ruled unanimously against the universities.
So on this issue it is hard to argue that Kagan was within the judicial mainstream. Her position is, additionally, hard to defend.
But that may not be the worst of it. The exclusion of openly gay men and lesbians — which I agree should be repealed — is not the military’s policy. It is a law that was enacted by Congress and signed by President Clinton. That didn’t stop Kagan from serving in Clinton’s White House. Nor did her opposition to what she considered the deep injustice of the policy move her to support continuing to discriminate against the recruiters when that would have required turning down some federal money.
So the military alone was supposed to pay a price for her principles — not politicians, and not the university.
Kurt Andersen also makes an interesting point on Facebook: It will, or should, be problematic for any Republican Senator who was in the Senate in 1999 to attack Elena Kagan’s appointment on the grounds that she has limited experience, since her experience is limited due in some measure to the Republican Senate in 1999. That year, her nomination to the D.C. Circuit Court of Appeals was tabled by the Republican-dominated Senate, as were all upper-court appointments by the Clinton administration, since there was an election looming and Clinton was a lame duck. This was a nakedly partisan ideological decision undertaken in part because the same had been done to Republican administrations by Democratic-dominated Senates in 1987-8 and 1991-2.
Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?
Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.
What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure. It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor. They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.
In some legal news today, the Supreme Court in a per curium opinion tossed out a second U.S. Circuit Court of Appeals ruling that had ordered the disclosure of detainee-abuse photographs in a lawsuit brought by the ACLU. The Court told the lower court to consider a federal law under which Secretary of Defense Gates in mid-November exercised his authority to prevent the photos’ release. If you recall, with advice from Eric Holder’s Justice Department, Obama at first didn’t oppose the release of the photos. When critical public opinion and outrage in the military surfaced over the potential to incite violence against our troops, the administration reversed course.
This is noteworthy on a few grounds. First, it demonstrates just how faulty and biased is the “legal” advice coming from the DOJ. Holder’s lefty lawyers first advised that, in effect, the president had no choice but to turn over the photos. Maybe that was the answer the White House wanted, but it was wrong and in fact an easy solution was arrived at. (An executive order would have been an even easier solution.)
Second, decisions are reversible if they prove foolhardy. Just as the photos need not be released, Guantanamo may remain in operation, and the president can put the kabosh on KSM’s civilian trial. The president really is in charge and if he can be persuaded that earlier advice was bad, there is usually a means of correcting any error. And finally, this episode should remind the administration that there is little to be gained and much to be lost by currying favor with the netroot crowd. Unless the administration wants to imperil national security and risk the wrath of the military and the majority of voters, it really won’t be able to keep the ACLU and its ilk happy. So it should stop trying.
UPDATE: Sens. Joe Lieberman and Lindsay Graham who co-sponsored the provision allowing Gates to block the photos issued a statement praising the ruling.