Just days after the Obama Adminstration announced that it would appeal a historic victory in favor of same-sex marriage in Massachusetts, the Administration is now appealing an equally historic victory over the Don’t Ask, Don’t Tell policy. U.S. District Judge Virginia Phillips refused demands by the Obama Administration that she rescind the national injunction against the policy. Now it has announced that, while it has had to suspend further discharges of gay personnel, it will appeal the decision to be able to resume such discharges.
Let us be clear on this point. The Administration is not required to appeal this decision. This is a discretionary decision. Moreover, the Administration did not have to oppose the injunction. It could have taken an appeal and allowed the injunction to stand. Once again, it is taking actions that appear in direct conflict with the President’s insistence that he opposes DADT. If DADT is discriminatory, why would the President be fighting to hard to resume discharges and preserve the policy? Would the Administration fight to preserve a racial or gender discriminatory policy? If the President believes that the Constitution does not protect against discrimination against gays, he should state so clearly. If he is opposed to the law, he also has wide discretion on when to enforce such laws. Only recently did the Defense Department impose a rule limiting, for example, the use of third-party snitches.
Any duty to defend the law was satisfied at the trial level, though it has been argued that the Justice Department should at least ask for a review of such a decision. I will note that when I had the Elizabeth Morgan law struck down before the D.C. Circuit, the Administration at that time decided not only not to seek review from the Supreme Court, it did not even ask for reconsideration before the D.C. Circuit or an en banc review. While members wanted to defend the law, the Administration invoked its discretion not to ask for review. (It had prevailed in the trial court so this was the first ruling striking down the law). In that case, the court had handed down a rare finding of a bill of attainder — something that many in Congress probably wanted reviewed due to its obvious importance in later challenges of federal laws.
More importantly, even if he feels a need to appeal as a general policy as part of his duty as the head of the Executive Branch, why oppose the injunction in the interim? Finally, the Administration argued in the Witt case that courts should not allow gay military personnel to show that they are not individually threats to good order and discipline. The Administration insisted that the courts should accept the military’s word that all openly gay and lesbian personnel are threats. It did not have to adopt such a position and could have assisted in a major advance (ultimately ordered by the Ninth Circuit over its objections) that required individual proof of these claims. Thus, if it really opposed DADT, why not adopt a moderate position that allowed a citizen to present evidence in her own defense that she was not a threat to good order and discipline. What the judge found in that case was that, once able to look at her as an individual, it was DADT that was the threat to good order and discipline in her unit.
The Obama Administration’s efforts to preserve DADT and to reverse gains on same-sex marriage occurs at the same time wen it has successfully sought a review by the Supreme Court of a lower court ruling against former Attorney General John Ashcroft. The Administration is arguing that Ashcroft had absolute immunity to use the material witness law to round up Muslim men and hold them without any intention of actually using them as witnesses. Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement). I discussed this issue this week on Countdown. I must confess not just disappoint but disgust with this line of cases, as I did on the program.
What is fascinating is that the Democrats appear likely to lose significant seats this election and possibly control of the House. The Administration made a cynical calculation in these cases to oppose fundamental principles in favor of transient politics. The result is that they could not be more unpopular. If the President had simply tried to fight for principle, he would be in no worse a position in the polls but would have stood for something. For civil libertarians, President Obama now ranks with one of the worst presidents in our history and virtually indistinguishable in these cases from his predecessor. For all of those Democrats in Congress begging for support, I will simply add that only a handful of these members publicly denounced the President for these actions and policies. Even with these appeals, there has been virtual silence from Democratic leaders or members.
Source: Yahoo
Jonathan Turley
Hold Your Government to Account And Go To Jail by Jesselyn Radackon October 20, 2010
http://www.whistleblower.org/blog/31-2010/798-hold-your-government-to-account-and-go-to-jail
“Woodward’s book includes disclosures such as:
the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.”
We have something akin to “a clandestine paramilitary army” operating domestially, but who would believe it…
Bob,
I think you covered all the low spots unless you want to count the various things the Obama Administration did to run flack and protect the interests of BP over those of American citizens. But that’s chump tyranny compared to the assassination and aiding and abetting after the fact of Bush war crimes by failing to prosecute.
The Raven,
SCOTUS could not as a practical matter hear every case as a case of first impression. It just doesn’t make logistical sense. The same Art. III provisions that empower SCOTUS empower the lower judiciary as well, including the Federal bench, by providing that SCOTUS is primarily an appellate authority that can only exercise original jurisdiction in limited circumstances thus necessitating a lower court to appeal from in other matters of Federal jurisdiction, i.e. the Federal bench which does hear original cases where there is proper Federal jurisdiction which does not fall under the SCOTUS exceptions. It may not be as clear a pronouncement as you like, but the function is in there as a matter of operation.
Nine Stories The Press Is Underreporting — Fraud, Fraud And More Fraud by Dan Froomkin
10-20-10 11:28 AM
http://www.huffingtonpost.com/2010/10/20/nine-stories-the-media-is_n_769620.html
“What we are seeing all around us are the continued effects of a vast criminal enterprise that has never been brought to account, employing a process that, as University of Texas economist James Galbraith explains, involved the equivalent of counterfeiting, laundering and fencing.”
I’m seeing a much different side of this “criminal enterprise.” I know this. We’re eating ourselves up from within.
@Buckeye, Bdaman: More news on foreclosures today, New York will now demand some proof:
http://news.yahoo.com/s/nm/20101020/bs_nm/us_usa_foreclosures_newyork
Sriram,
I’m not as much concerned with whether it is the Executive or the Legislature as I am where the District Court acquired the power reserved for the Legislature.
Even if we are to consider the Supreme Court to have an implied power, I don’t see how that same power got placed in the hands of the District Court.
It’s both fascinating and sad to watch as man bites the hand of a group that worked so hard and spent so much money helping get him elected….after the past two years I often wonder who is this person we elected president….
Sriram,
I don’t have a problem with SCOTUS (the Court whose decisions are controlling upon all other courts) exercising the power of judicial review. I do have a problem with the District Court exercising the same power.
If judicial review is an implied power, as so many of today’s constitutional scholars proclaim, then why would such eminent jurists as John Marshall and Joseph Story have dreaded the possible repeal of the twenty-fifth section?
Defending warrantless wiretapping (effectively rendering the 4th amendment repealed);
An Obama administration task force that includes officials from the Justice and Commerce Departments, the F.B.I. and other agencies recently began working on draft legislation to strengthen and expand the Communications Assistance to Law Enforcement Act, a 1994 law that says telephone and broadband companies must design their services so that they can begin conducting surveillance of a target immediately after being presented with a court order.
There is not yet agreement over the details, according to officials familiar with the deliberations, but they said the administration intends to submit a package to Congress next year.
Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.
“The government’s answer is ‘don’t deploy the new services — wait until the government catches up,’ ” Mr. Gidari said. “But that’s not how it works. Too many services develop too quickly, and there are just too many players in this now.”
@Bob,Esq: It is hard to imagine a Republican could have been any worse than Obama on civil rights. Exactly the same, perhaps, but worse? What is left, after Presidentially decreed assassinations?
Defending warrantless wiretapping (effectively rendering the 4th amendment repealed);
U.S. Pushes To Ease Technical Obstacles To Wiretapping
http://www.nytimes.com/2010/10/19/us/19wiretap.html?_r=1&hp
Raven – DADT was part of a Defense Authorization bill, it was a law passed by congress. Cases involving questions of federal law are argued at the US District Court level … as this was. DADT is not an executive order or the whim of the executive acting as commander in chief (items which the courts have less obvious jurisdiction over) but a Congressional law.
Courts are the authority to resolve questions of Congressionally passed law and invalidate acts of Congress if they are unconstitutional. Absolutely.
JT: “Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement).”
Buddha,
Would you mind completing this list as best as you can?
Here’s my stab at it:
Defending warrantless wiretapping (effectively rendering the 4th amendment repealed);
Suspending habeas corpus sans insurrection or rebellion;
Issuing executive assassination orders; raising himself to the level of absolute monarch.
What am I missing here?
Buddha is Laughing,
I appreciate your attempt to answer my question, but I am looking for something more specific.
As we all know, the Armed Forces are under control of the Executive. Therefore, when a District Court enjoins the Armed Forces, that court is exercising control over the Executive. While I have no problem with permitting the court to temporarily enjoin an agency from following a law that would violate the rights of the party before them, I do have a problem with the District Court permanently enjoining the U.S. Armed Forces, and by direct connection, the Executive.
As John Adams inscribed in the Massachusetts Constitution of 1780, the people, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution, above all, to exercise no powers not granted. When questioned about the source of the District Court’s power, the court (or anyone who support the exercise of that power) should be able to identify the source. The burden is on the claimant to provide the source of their power. Failing to do so, it is a usurpation.
I can’t understand how we could have a president who was a law professor, and 71 of 100 senators with law degrees, and they haven’t gotten any handle on procedural due process issues in the federal courts.
If I was on the Senate Judiciary Committee, I would ask the Supreme Court to come in and answer public complaints about administration of the courts.
SAN DIEGO (AP) – At least three service members discharged for being gay have begun the process to re-enlist after the Pentagon directed the military to accept openly gay recruits for the first time in the nation’s history.
The top-level guidance issued to recruiting commands Tuesday marked a significant change in an institution long resistant and sometimes hostile to gays.
“Gay people have been fighting for equality in the military since the 1960s,” said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara. “It took a lot to get to this day.”
The movement to overturn the military’s “don’t ask, don’t tell” policy gained speed when President Barack Obama campaigned on its repeal. The effort stalled in Congress this fall and found new life last month when a federal judge in California declared it unconstitutional.
http://apnews.myway.com/article/20101020/D9IVB2I80.html
He was just confused with slang SWMOM
Whats up dog, Waz happenin, aint nuttin to it, you iaight, yea it’s all good. Bet, Ay Ay tell yo mamma I sed hello. Nigga u need to stay off my momma. Oh ok den
http://tpmdc.talkingpointsmemo.com/2010/10/racist-email-flap-blows-up-virgina-beach-gop.php?ref=fpb Republicans are using racism to turn out their vote.
The DHS has suspended enforcement of the widow’s penalty. Obama has a chance to lead and, per usual has abdicated it in exchange for pandering to people who absolutely will not vote for him or his party. The DoJ might have a basic obligation to appeal the case just so true opponents of the law have a forum for amicus briefs and the like. But fighting discharges is way more than necessary.
I recall hearing an Iraq War veteran telling Rachel Maddow something very close to the following: “He (Obama) needs to know that we can be his best friends or his worst enemies.”
I was bothered by the statement then and am thinking about it again this morning. There are some very strange things going on these days…
DOJ, DOD and other government agencies suspend and ignore laws all the time. Just look at the reporting requirements of the Privacy Act and then ask for the agency reports.
The Courts do whatever they want to. For instance, they issue NO PRO SE orders without complying with Rule 65. They don’t have a statutory authority, they don’t require bonds, they don’t require motions, they don’t require motion hearings, and they don’t require a document that doesn’t incorporate a complaint or other document. The Courts claim statute – less injunctive authority against pro se litigants so why not against the government?