THE SUPREME COURT VACANCY: WILL PRESIDENT OBAMA SELECT A GRAND SLAM OR A SACRIFICE FLY NOMINEE?<a href=”https://jonathanturley.files.wordpress.com/2016/02/275px-sonia_sotomayor_on_first_day_of_confirmation_hearings.jpg” rel=”attachment wp-att-97065″><img src=”https://jonathanturley.files.wordpress.com/2016/02/275px-sonia_sotomayor_on_first_day_of_confirmation_hearings.jpg” alt=”275px-Sonia_Sotomayor_on_first_day_of_confirmation_hearings” width=”275″ height=”183″ class=”alignleft size-full wp-image-97065″ /></a>
The passing of Supreme Court Justice Antonin Scalia has ignited the usual pundit guessing-game about possible successors, but this time with an unusual twist. It is exceptionally rare for a justice to die in the midst of a congressional session, let alone in the final year of a lame duck presidency. That means the first question for President Obama will be not which nominee has the best chance at winning confirmation, but whether he wants to try to win at all. If he is convinced that no nominee will be voted on before the new administration takes office in 2017, the course preferred by Senate Majority Leader Mitch McConnell, the White House may want to pick the best losing strategy. Viewed from these different perspectives, the list of candidates changes dramatically.
Here is the calculus. If you honestly think (as the White House has suggested) that the Republicans will eventually back down, you will want to put forward your top scoring nominees: candidates who are relatively young, moderate and free of controversial writings or statements. If you realistically think that the Republicans will hold firm and either filibuster or reject any nominee, you will want to put forward your best losing candidates, regardless of how liberal or provocative they may be.
<strong>GRAND SLAM LIST
Obviously, Republicans would love Obama to nominate a radioactive or hard left candidate. However, their dream of Kanye West or Gloria Steinem is not likely to pan out. Instead, the Administration could pick a respected moderate who has taken no positions on hot button issues. Here are a few of the most promising:
<a href=”https://jonathanturley.files.wordpress.com/2016/02/sri_srinavasan.jpg” rel=”attachment wp-att-97064″><img src=”https://jonathanturley.files.wordpress.com/2016/02/sri_srinavasan.jpg?w=120″ alt=”Sri_Srinavasan” width=”120″ height=”150″ class=”alignleft size-thumbnail wp-image-97064″ /></a><strong>Sri Srinivasan</strong>: A moderate on the D.C. Circuit, Srinivasan is only 48 and was confirmed unanimously in 2013. Ted Cruz is not just a longtime friend but Republican Sen. Orrin Hatch called him “terrific.” Srinivasan was born in India and would be the first-ever South Asian circuit court judge and Hindu on the Court. While some liberal groups would not be thrilled with the former Exxon lawyer, Srinivasan would present one of smallest targets for the conservatives.
<strong>Jacqueline Nguyen</strong>: Nguyen, 50, has an incredible life story after coming from Vietnam at age 10 amid the fall of South Vietnam. Her opinions are a mix politically, but she drew criticism from liberals for a dissent favoring a police officer in an abuse case. She was confirmed to the Ninth Circuit Court of Appeals in San Francisco by a near unanimous 91-3 vote.
<strong>Merrick Garland</strong>: Garland, 63, is the Chief Judge of the D.C. Circuit Court of Appeals and a true moderate. Ironically, his age could work to his advantage with conservatives who may feel that his age limits their exposure if he turns out to be more liberal once on the court. He clerked for Supreme Court Justice William Brennan and counters views that Obama is making his selections based largely on diversity criteria.
<strong>SACRIFICE FLY LIST</strong>
While the “best losing candidate” may seem like an oxymoron (and you may believe that only a moron would agree to do it), there are candidates who are ideal for a losing scenario. This more pragmatic view is to try for a sacrifice fly that moves the election even if you do not move the nomination. Republican voters will already rally to try to avoid a liberal nominee who could threaten gun or abortion rights or other big ticket causes in the election. A compelling nominee could rally irate Democratic voters in the aftermath of a bruising confirmation fight.
Of course, agreeing to be a sacrificial nominee to the courts is a lot like signing up with the Navy to be a target buoy — it does not exactly make for a promising career. A nominee could wind up damaged goods or even “Borked” (the verb created after the Democratic trashing of nominee Robert Bork near the end of the Reagan administration). So you need not just a compelling nominee but a willing nominee.
Here are the best options:
<a href=”https://jonathanturley.files.wordpress.com/2015/01/loretta_lynch.jpg” rel=”attachment wp-att-87709″><img src=”https://jonathanturley.files.wordpress.com/2015/01/loretta_lynch.jpg?w=120″ alt=”Loretta_Lynch” width=”120″ height=”150″ class=”alignright size-thumbnail wp-image-87709″ /></a><strong>Loretta Lynch</strong>: Lynch, 56, is the current U.S. Attorney General, and would be perfect for a sacrifice fly nomination. Republicans would be faced with roughing up a prominent female candidate with a compelling life story. She has no judicial experience, which means no opinions to pick apart. As a prosecutor, she has a tough-on-crime record. She is also very good in combative hearings and is guaranteed to still have a job when they are over. Lynch is not as good as a successful nominee since she is a bit older and also would have to recuse herself from a number of key cases. However, it you are looking at marginalizing the GOP with women and African-Americans, a Lynch nomination could be just the ticket.
<strong>Mariano-Florentino Cuéllar</strong>: Cuéllar, 43, is a liberal justice on the Supreme Court of California who served in both the Clinton and Obama administrations. Born in Mexico, he could rally the all-important Hispanic vote and force the GOP to bar the first Mexican-American on the court. As an immigrant, he would resonate well with a key political group.
<strong>Paul Watford</strong>: While the African-American vote is considered a lock for the Democrats, there remains the question of motivating this bloc to come out in the general election. A bruising confirmation fight for Watford, 48, might do it. A judge on the Ninth Circuit Court of Appeals, he was confirmed 61-34. Opponents deemed his positions on the death penalty and immigration policies too liberal.
Of course, Obama could make a choice entirely on the merits — or the GOP could commit the political version of an infield error and a sacrifice fly could actually score. Babe Ruth said, Never allow the fear of striking out keep you from playing the game. The question is what game are we playing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
February 18, 2016
SCALIA AND HIS LEGACY
Years ago, I attended a small gathering honoring a leading Sicilian politician in Washington. Since I was raised in a Sicilian family, I relished the opportunity to talk about Italian culture and food with an animated paisan. As we drank and toasted with Italian wine, one voice constantly boomed above the rest with a “Cent’Anni” toast for everyone to “live 100 years.” It was Associate Justice Antonin Scalia, who regaled the group with his tales and jokes. We all chatted away near an open bay window when security guards approached and explained that the Italian politician had been the subject of Mafia threats and that they were worried about a hit team in Washington. Scalia would momentarily acquiesce, then quickly gravitate back to the window so he could continue to joke and laugh with the group. He was in his element; a possible hit team was not going to interrupt a good story.
Throughout his 30 years on the court, many tried to move Scalia, with equally limited success. As the court shifted to the left and constitutional analysis became more fluid, Scalia remained planted in his spot.
The Supreme Court is known to change people. Some justices, such as Byron White, came to the court as liberals and moved sharply right. Others, like William Brennan, John Paul Stevens and Harry Blackmun, were appointed as conservatives and moved sharply to the left. Scalia stood still. He came to the court with a well-defined jurisprudence that remained remarkably consistent throughout his tenure.
What made Scalia an icon for the right was the clarity and passion that he brought to the court. Like Louis Brandeis and Oliver Wendell Holmes, he was a “great dissenter” who refused to compromise on his core beliefs. He was entirely comfortable being a dissent of one. And he was greatly discomfited by the idea of exchanging principle for some plurality of votes on a decision. In oral argument as well as in his opinions, Scalia was direct and transparent. He was, in a word, genuine.
Ironically, Scalia’s passing comes at a time when the public is craving precisely the type of authenticity that he personified. The rejection of establishment candidates in both the Republican and Democratic races reflects this desire for leaders who are not beholden to others and unyielding in their principles. That was Nino Scalia. Love him or hate him, he was the genuine article. At times, as in the decision in Kyllo v. United States barring the warrantless use of thermal imagery devices by the police, Scalia would break from his colleagues on the right of the court. While many disagreed with his principles, he at least had principles and remained faithful to them from his first to his last day as a justice.
Scalia clearly relished a debate and often seemed to court controversy. It was a tendency familiar for anyone who grew up in a large Italian family: If you really cared for others, you argued with passion. Fights around the table were a sign of love and respect. Perhaps it was this upbringing that made it so hard for Scalia to resist a good argument inside or outside the court. He sometimes spoke on issues involved in cases coming before him, which was ill-advised. He was the arguably first celebrity justice. Ironically, his close friend on the court, Ruth Bader Ginsburg, has maintained the same type of following from the left side of the bench.
It was an irresistible impulse that likely cost Scalia the chance to become chief justice. That position went to a jurist of a different cut: John G. Roberts Jr. Where Scalia felt compelled to speak his mind, Roberts spent a career avoiding controversial comments or associations. There is no question that restraint can make for a great chief justice. But the directness can make a great justice, too. Indeed, Scalia’s opinions are likely to withstand the test of time because they espouse a consistent and clear jurisprudential view. He was not one to compromise. Instead Scalia waited for the court to form around his position rather than tailor a position to fit the court.
Of course, Scalia’s comments could border on the brutal. At American University, he told law students that he saw little point in selecting students from outside the top schools because “you can’t make a sow’s ear out of a silk purse.” I strongly disagreed with this statement, but I also knew that Scalia was (once again) voicing a view that other justices privately hold yet do not publicly admit. Scalia did not evade such issues; he embraced them. He believed convictions should be tested and defended if they are to be maintained.
What made Scalia persona non grata with many legal intellectuals made him an icon for millions of average citizens. In a city that seems to overflow with doublespeak and guile, Scalia spoke clearly and passionately about the law. He often chastised his colleagues for assuming the position of a super-legislature and denying the public the right to solve difficult social and political issues. He railed against inconsistency in legal theory and the proliferation of different tests by the court to justify its conclusions. He often hit his mark with these critiques: While I disagreed with Scalia about privacy and gay rights, his critique of Justice Kennedy’s new “liberty interest” in Obergefell v. Hodges correctly challenged the majority on a new and undefined right. One could disagree with Scalia and still recognize the extraordinary depth and scope of his analysis. When he had a majority, that depth gave his opinions lasting quality, as with his foundational work on the meaning and purpose of the Takings Clause in Lucas v. South Carolina Coastal Council.
Scalia resisted the legal indeterminacy and intellectual dishonesty that he saw as a corruption of modern constitutional analysis. He believed that the law was not something that should be moved for convenience or popularity. Neither was he. He finished in the very same place he began in 1986. In the end, he is one of the few justices who can claim that he changed the Supreme Court more than the court changed him.
Washington Post, Sunday, February 13, 2016
KIM DAVIS: HERO OR VILLAIN?
Defiant Kentucky county clerk Kim Davis has appealed the contempt order that has left her languishing in jail. At the same time, her lawyer has argued that marriage licenses issued without her signature are invalid — an interesting question given the state’s requirement that her signature be affixed to every such license. Below is my recent Washington Post column on Davis and how she fits within our social our collective social and legal iconography. Defiance is a heroic value when it is Martin Luther King violating police orders and standing unbent before biting dogs and swinging batons. It was inspiring to millions when King cited St. Augustine to declare “an unjust law is no law at all”. Such figures stood against not just our prejudice but our laws in their defiance. As Henry David Thoreau stated “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Those who transgress upon unjust laws today are often heralded as heroes tomorrow from early American patriots to abolitionists to suffragists to desegregationists. Even today many praise Edward Snowdon for his criminal actions in disclosing a massive surveillance system of U.S. citizens even though those same laws are designed to protect our national security. Yet, Davis is using his public office to impose her religious values on neighbors. That contrast led to the column below.
County clerk Kim Davis cut a striking figure this week as she thanked the judge who found her in contempt of court and then was taken into custody. For some, Davis is the face of courage and principle as she refuses to commit what she considers an immoral act of issuing marriage licenses to same-sex couples. For others, she is a religious bigot who is using her public office to force her neighbors to adhere to her own moral values.
It is not surprising that a single act of defiance could provoke such divergent interpretations. From Dred Scott to Brown v. Board of Education to Roe v. Wade to the recent decision in Obergefell v. Hodges, we tend to see our legal values embodied in heroic or demonic figures. So when history passes judgment, will Davis be hero or villain?
There is a material difference between citizens who refuse to yield individual rights against the government and government officials who use their offices to deny rights to citizens. Defiance was heroic when Martin Luther King Jr. declared that “an unjust law is no law at all” and stood unbent before biting dogs and swinging police batons. King, Rosa Parks and Alice Paul could not accept the law without accepting second-class status for themselves.
And yet George Wallace is rightly vilified for defying the federal government and trying to block desegregation in Tuscaloosa. Government officials like Wallace and Davis are not required to accept values as individuals. They are required to follow the law, which is ultimately defined by the Supreme Court in its interpretation of our Constitution.
Davis has said that “[t]o issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” While clerks do “sign off” on certificates, that is not a discretionary function. Their signature confirms compliance with the dictates of the law, not personal moral dictates. They cannot deny certificates to those who are legally qualified to receive them.
Davis may have had a principled position in previously declining to issue these licenses while the courts considered the merits of the question. Similarly, clerks who believed that there was a legal basis to issue such licenses based on lower court decisions would claim a principled stand. However, that debate ended the minute the box holding the Obergefell opinions was opened in the Supreme Court clerk’s office on June 26.
The only question that remains is whether clerks like Davis want to continue in office. Davis does not have to be a clerk any more than she would have to be a bus driver or a schoolteacher. If she has a moral conflict with her duties, she has a principled avenue of resolution: She can resign. Just as Wallace had no right to block the schoolhouse, she has no right to block the courthouse.
The great irony about Davis’s iconic status is that her supporters fail to see how her dissent threatens their interests, too. Religious conservatives have some legitimate concerns about the erosion of rights — particularly speech rights — in the face of anti-discrimination laws, as currently being debated in cases involving Christian bakers and wedding photographers. However, Davis is asserting the very authority that the religious community has been dreading.
If one clerk can refuse to comply with laws governing due process, privacy or equal protection, another clerk could do the same with laws related to religious rights. In other words, religious conservatives could find themselves across a counter from someone who refuses to recognize their religious practices or beliefs. When Davis was asked by a gay couple what authority she had to refuse their license, she responded “Under God’s authority.” Would her supporters feel the same way if God meant Allah or Yahweh?
That distinction seems to be missed by protesters such as Flavis McKinney, who told the New York Times that he came to the courthouse this week “to stand up for God and his word, and to stand up for our clerk.” Indeed, McKinney referred to another iconic figure in noting that “[God] delivered Daniel from the lion’s den. So I trust he will deliver her.”
Actually, the story of Daniel is precisely the point. Daniel was a government official who was thrown into the pit with the lions by his master, Darius the Mede, for violating the law (by praying to his God rather than to Darius). It might look like Davis, who was ordered to jail Thursday, is surrounded by critics, with only her faith to protect her. However, Davis is no Daniel.
Daniel did not jump into the den to await divine intervention. Whereas Davis has not only called forth the lions but declined various exits offered by the court, including simply instructing her clerks to issue the licenses. The divine lesson is the same as the legal one: leave the den and the lions behind.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Washington Post – September 3, 2015
OBERGEFELL AND THE RIGHT TO DIGNITY
Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.
Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.
Here is the Sunday column:
Like many people at the Supreme Court last month, I was deeply moved by the historic ruling in Obergefell v. Hodges recognizing the constitutional right of same-sex couples to marry. At such a transcendent moment, it is difficult to do anything but celebrate the triumph of what Justice Anthony Kennedy called the “dignity” and “profound hopes and aspirations” of the many loving couples who had been denied the recognition of marriage.
But Kennedy’s moving language was more than just aspirational thoughts on dignity. He found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the “dignity” of marriage. The uncertain implications of that right should be a concern not just for conservatives but also for civil libertarians. While Obergefell clearly increases the liberty of a historically oppressed people, the reasoning behind it, if not carefully defined, could prove parasitic or invasive to other rights. Beware the law of unintended constitutional consequences.
For the record, I have long advocated the recognition of same-sex marriage. But the most direct way the justices could have arrived at their conclusion would have been to rely on the 14th Amendment’s equal protection clause. It, along with the civil rights legislation of the 1960s, holds that all citizens are entitled to the same treatment under the law, no matter their race, sex, religion or other attributes known as “protected classes.” Kennedy and his allies could have added “sexual orientation” to the list of protected classes, making the denial of marriage licenses an act of illegal discrimination. This approach would also have clarified the standard in a host of other areas, such as employment discrimination and refusal of public accommodations.
Instead, Kennedy fashioned the opinion around another part of the 14th Amendment, holding that denial of marriage licenses infringed on the liberty of gay men and women by restricting their right to due process. As Justice Clarence Thomas correctly pointed out, liberty under the Constitution has largely been defined as protection against physical restraints or broader government interference — “not as a right to a particular governmental entitlement.” While Kennedy makes a powerful case for an expansive new view of due process, he extends the concept of liberty far beyond prior decisions.
In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheld Roe v. Wade on the basis of “personal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment.” Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked with Obergefell, which he described as an effort of the petitioners to secure “equal dignity in the eyes of the law.” He used the word “dignity” almost a dozen times in his decision and laid down a jurisprudential haymaker: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”
These words resonate with many of us, but it is not clear what a right to dignity portends. As Justice Antonin Scalia predicted in an earlier dissent to Lawrence, it signals “the end of all morals legislation.” Some of us have long argued for precisely that result, but the use of a dignity right as a vehicle presents a new, unexpected element, since it may exist in tension with the right to free speech or free exercise of religion.
Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority. The courts may not be so readily inclined to find that other loving relationships are, to quote the opinion, a “keystone of the Nation’s social order” when they take less-orthodox forms. But popularity hardly seems like a proper legal guide to whether a relationship is dignified.
With the emergence of this new right, we must now determine how it is balanced against other rights and how far it extends. For example, it is clearly undignified for a gay couple to be denied a wedding cake with a homosexual theme. Yet for a Christian or Muslim baker, it might also feel undignified to be forced to prepare an image celebrating same-sex marriage. Should the right to dignity trump free speech or free exercise?
Other groups outside the lesbian, gay, bisexual and transgender community could invoke this precedent, since the reasoning does not concern a protected sexual-orientation class but rather a citizen’s right to dignity. Could employees challenge workplace dress codes as intruding upon their right to “define and express their identity”? Could those subject to college admissions preferences raise claims that race or gender classifications deny their individual effort to “define and express their identity”? Kennedy’s approach has only deepened the uncertainty over how courts will handle such cases.
Some of the greatest attacks on dignity are often found in the exercise of free speech. Europe and Canada, for example, protect broader dignity rights through laws that penalize statements deemed degrading, hateful or insulting to different groups, including homosexuals. In Britain, for example, a Baptist street preacher was charged with causing “harassment, alarm or distress” by stating on a street corner that he viewed homosexuality to be a sin. In Canada, comedian Guy Earle was found guilty of violating the human rights of a lesbian couple after he got into a trash-talking exchange during an open-mike night at a nightclub. In France, comedian Dieudonné M’Bala M’Bala has been arrested and prosecuted for jokes deemed anti-Semitic. In Greece, another jokester was arrested for insulting a famous monk by making his name sound like a pasta dish. In Italy, comedian Sabina Guzzanti was investigated for joking that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big [gay] devils.”
In the United States, such efforts have been largely stymied by the express protection of free speech in the First Amendment and expansive interpretations by the courts. Nevertheless, pressure is rising to criminalize forms of “hate speech” or speech that is viewed as discriminatory or degrading to certain groups. Universities increasingly warn students and faculty not just against comments deemed racist but also against an ever-expanding list of “microaggressions,” such as the use of “melting pot” and other terms considered insensitive. This year, a Montana prosecutor sought to punish speech that exposes religious, racial or other groups “to hatred, contempt, ridicule, degradation, or disgrace.” Such laws could now be justified as protecting the dignity rights of groups and balancing the “danger” of free speech.
Obergefell would be a tragic irony if it succeeded in finally closing the door on morality and speech codes only to introduce an equally ill-defined dignity code. Both involve majoritarian values, enforced by the government, regarding what is acceptable and protectable. Substituting compulsory morality with compulsory liberalism simply shifts the burden of coercive state power from one group to another.
None of these concerns take away from the euphoria of this liberating moment. And the justices can certainly tailor their new right in the coming years. But if we are to protect the dignity of all citizens, we need to be careful that dignity is not simply a new way for the majority to decide who belongs and who does not in our “Nation’s social order.”
Washington Post (Sunday) July 5, 2015
———————-ELONIS AND THE NEAR MISS ON FREE SPEECH
Below is my column today in USA Today on the decision of the Supreme Court to reject the Obama Administation’s argument for a low standard in criminalizing speech on the Internet and other forums. The Court did not have to directly deal with the free speech implications of the case since it ruled on the standard for criminalization. The Court rejected the lowest standard of a reasonable person in establishing a criminal threat. However, with the remand, the issue may come back to the Court under another effort to adopt an alternative standard of recklessness.
Winston Churchill once said that there is “nothing in life is so exhilarating as to be shot at without result.” The free speech community experienced precisely that sensation this week after the Supreme Court rejected a sweeping move by the Obama administration to criminalize some speech on the Internet and social media. Even as we dodge the bullet, many Americans will not realize how close this country came to following Europe in the criminalization of speech.
The case, Elonis v. United States, could not have had a less redeeming character at its center. Anthony Elonis, 31, was convicted for Facebook postings deemed threats of violence against his former wife and former colleagues. After his wife left him and he was fired from his job, Elonis began to post rap lyrics containing graphic violent language and imagery. For these juvenile and degrading postings, Elonis adopted the rap-style nom de plume “Tone Dougie,” to be his online persona while repeatedly disclaiming the lyrics as “fictitious” and not meant to bear “resemblance to real persons.” While he said “I’m doing this for me. My writing is therapeutic,” others saw the postings as intentionally threatening.
There is no question that Elonis has the mentality of an angry toddler. However, the Obama administration charged him with five counts of transmitting in interstate commerce “any communication containing any threat … to injure the person of another.” The administration argued (and the trial court and appellate courts agreed) that prosecutors need not show that Elonis intended these rap songs as threats. Rather, it argued that the government could criminalize any communications that a reasonable person deemed a threat.
That effectively flipped the standard from looking at the intent of the individual to how the statement is received or perceived under a “reasonable person” standard. While the Supreme Court did not conclusively state that the intent (or “scienter”) requirement requires an intent to threaten, it rejected the lower standard and remanded for the lower courts to consider whether “recklessness” could be used in such cases.
There was always more to this case than the dubious character of Anthony Elonis. Throughout the West, there has been an expanding rollback on free speech in the wake of violent protests by Islamic groups. While Western leaders, including President Obama, talked a good game of supporting free speech after murderous riots over the publication of cartoons or films depicting the prophet Mohammed, they have quietly ramped up prosecutions for those who exercise free speech. The most hypocritical moment came this year with the march featuring French President Francois Hollande and world leaders in solidarity with free speech after the massacre of journalists at the magazine Charlie Hebdo by Islamic extremists. The French government itself had been hounding the publication with criminal investigations in the years leading up to the massacre. After the march, it rounded up dozens of writers and speakers on hate speech charges under the same laws.
Obama has a similarly checkered past on free speech. His administration in the first term supported an international standard that would have allowed the criminalization of anti-religious speech.
Then in 2012, when a trailer of the low-budget movie Innocence of Muslims was put on YouTube, there was another global spasm of murder and arson by irate Muslims. While Obama insisted that the filmmaker, Nakoula Basseley Nakoula, had every right to make the film, he was thrown into a police car in handcuffs for technical violations of a probation on unrelated charges.
The Elonis case was a critical move to open the door to the type of criminalization of speech that is now common in Canada and Europe. Putting aside the actual prosecutions, it would have created a clearly intended “chilling effect” for everyone posting comments that they could be arrested if “reasonable people” would view their comments as threats.
The justices found that the administration was seeking a fundamental change in the standard required to convict someone of a crime. The court cited the long-standing principle that “wrongdoing must be conscious to be criminal.” Though there are a few exceptions, the court said a guilty mind is “a necessary element in the indictment and proof of every crime.”
The 8-1 opinion written by Chief Justice John Roberts does not end the threat to free speech, but it certainly avoids the worst case scenario in foreclosing the use of the lowest reasonable-person standard. However, it is still chilling that a federal trial judge and a panel of appellate judges were willing to dispense with this fundamental protection not only for criminal defendants but also for free speech. There continues to be growing pressure to criminalize speech on the Internet, and the Obama administration has been at best passive aggressive toward free speech protections. In this case, it was aggressively seeking a rollback.
The Elonis case is an example of how the government can use the least sympathetic characters to reduce free speech. Though this case dealt with the perceived threat to particular individuals, the establishment of a lower standard for the criminalization of speech could have been easily expanded. This will not be the last such attempt. In the end, the greatest losses to liberty come from self-inflicted wounds. This week we avoided such a fatal shot, but it came close enough to part our constitutional hair. Unless we become more vigilant, the next attempt by the government could prove more lethal to liberty.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
Below is my Sunday column in the Washington Post on Indiana’s Religious Freedom Restoration Act (RFRA). Within minutes of the signing of Indiana’s Religious Freedom Restoration Act (RFRA), a chorus of condemnation arose across the country that threw Indiana Governor Mike Pence and his colleagues back on their heels. The response was understandable, though somewhat belated. After all, both Presidents Bill Clinton and Barack Obama supported similar language that is found not only in federal law but the laws of 19 other states. While broader than most of these laws, the premise of the Indiana law was the same: citizens could raise religious beliefs as a defense to governmental obligations or prohibitions.
For those of us who have been warning for years about the collision of anti-discrimination laws and religious beliefs, the current controversy was a welcomed opportunity to have this long-avoided debate. Yet, we are still not having that debate. Instead, there is a collective agreement that discrimination is wrong without addressing the difficult questions of where to draw the line between the ban on discrimination and the right to free speech and free exercise. That includes the question of why only religious speech should be protected in such conflicts, as noted in the column. Yet, there is a reluctance of acknowledge good faith concerns among religious people in fear of being viewed as bigoted.
There has been a great deal of heated rhetoric in this discussion that avoids many of the more difficult questions. For example there is the common criticism that these bakers cannot assert their religious beliefs when it is really their business that is being required to take certain actions. However, last year, the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. expressly found that such businesses do have religious rights (as they do speech rights, as recognized in Citizens United v. Federal Election Commission). In 2014, the Court ruled that “no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.” Likewise, despite arguments that the federal RFRA is narrower because it references only conflicts with the government (and not other private parties in the Indiana law), some courts have ruled that it can be used in civil litigation.
As expected, the response of some commentators was to condemn even raising these question of free speech by saying that it saying that it equates gay couples to the KKK or Nazi sympathizers. Even when admitting that they do not have an answer for the free speech question, the attack is on the raising of such questions. There are legitimate concerns over allowing businesses to refuse to prepare products deemed offensive due to symbols or language, but we cannot really address these issues if people are denounced for just raising the conflicts and discussing conflicts. It results in a circular position that we can discuss the question of the protection of offensive speech but not if the question is offensive to discuss. This is an unfortunate trend where difficult questions are avoided by attacking those raising them as presumptive racists or homophobes etc for even raising different types of speech or views. It is a rather odd position to be placed in given my writings for decades supporting gay rights and same sex marriage. More importantly, when discussing the limits of free speech, one necessarily discusses the broad spectrum of free speech examples, including offensive speech. There is not an effort to equate gay marriage symbols or language with anti-Semitimic symbols or language. Obviously, as a supporter of same-sex marriage, I reject that notion. However, the point is that some people hold opposing views from my own. Some of those views I find deeply offensive. If we want to discuss the growing limitations on speech, we need to explore the spectrum of different forms of speech. That is what CNN did in the interview when raising the “KKK cake.” CNN was not saying that such a view is equally valid on the merits. It is ridiculous to say that, by discussing what different people consider offensive, we are saying that all of those views are valid or correct. It is not enough to say that such people are simply wrong or there is clearly a difference in the “real” offensiveness of the messages. Indeed, in some ways, such critics are answering the question by saying that some views are simply not viable because they are wrong. That is saying that society will draw the line on what speech can be the basis for refusing services and what cannot be such a basis.
The column below raises the question of line drawing and states that I would prefer an absolute rule requiring all services. However, I could not support such a rule if we are going to strip protection from “wrong” views while allowing others to refuse on the ground that other symbols or language are clearly offensive. One variation on the “No Cake For You” approach below was suggested by a colleague who said that we could allow bakers and others to refuse any offensive language — religious or non-religious — unless the government could show that the baker would have sold the cake but for the status of the prospective buyer (e.g., gay or straight, Jewish or not, etc.). Thus, as long as the basis of the refusal was the actual language or symbols, it would be protected as an expressive act.
As I say in the column, I continue to struggle with drawing this line. None of the options are particularly satisfying. However, I do think that we have to have a real dialogue on this issue free of low-grade efforts to those on the other side as bigoted for wanting to discuss the range of free speech conflicts. The point is that, when dealing with the question of the right to refuse to create offensive symbols or language, one must address the fact that there are a wide array of such conflicts that can arise among different religious, cultural, or political groups. One does not have to agree with their speech to raise the question of their right to engage in such speech. Indeed, the first amendment is designed to protect unpopular speech. We do not need it to protect popular speech. Some may ultimately decided that no business can refuse any message under the “Let Them Eat Cake” approach despite rulings like Hobby Lobby and Citizens United. However, the first step is to have the debate, preferably free of personal attacks or attempts to silence those who would raise the speech of other unpopular or offensive groups.
After all the heated rhetoric over Indiana’s controversial religious freedom law, this rights debate could ultimately come down to a cake war. Just as diners were at the epicenter of the fight over racial desegregation, bakeries have become a flashpoint today.
Conservatives in Indiana and elsewhere have objected to bakers (and florists and photographers) being “forced by the government to participate in a homosexual wedding.” While those conservatives have been rightly ridiculed for failing to explain how the Indiana law as originally formulated would not license bigotry, critics can be equally chastised for failing to explain where to draw the line between religious freedom and discrimination. Asked on CNN this week whether a Jewish baker should have to make a cake for a KKK couple, Sarah Warbelow, legal director of the Human Rights Campaign, insisted that “there’s a huge difference between having to write something objectionable on a cake and being asked to provide a cake for a same sex couple.”
Of course, for some religious bakers, a cake with language or an image celebrating same-sex marriage is objectionable. In other words, critics may be trying to have their cake and eat it, too.
Consider two cases that both happen to involve bakeries in or near Denver, Colo. In July 2012, David Mullins and Charlie Craig visited Masterpiece Cakeshop to order a wedding cake. Owner Jack Phillips said that, due to his Christian beliefs, he could not provide a cake for the celebration of a same-sex marriage. Colorado’s Civil Rights Commission ultimately ruled that the bakery broke the state’s anti-discrimination laws.
Now, the flip side. In March 2014, Christian customer Bill Jack asked Azucar Bakery to prepare two cakes in the shape of Bibles — with an X over the image of two men holding hands. Owner Marjorie Silva said she would make the cakes but refused to include what she found to be an offensive message. Jack filed a religious discrimination claim that’s now pending with the state’s civil rights division.
Two sets of cakes. Two different sentiments viewed as offensive. Can we compel the baker in one case and permit the other to refuse? And should the right to refuse be limited to religious objections? There are an array of messages that offend non-religious persons or violate non-religious values. Glibly saying that you cannot discriminate ignores legitimate questions of forced speech and forced participation.
I’ve struggled with the tension between anti-discrimination laws and free speech/free exercise for years, and I see three basic approaches to resolving it:
Let them eat cake. As one option, we could maintain a strict neutrality rule that requires businesses to serve all customers, even when they find customers or their requests (whether involving cakes or flowers or photographs) to be offensive. If you choose to go into a particular business, you lose the ability to withhold services based on the content of messages or the specific attributes of an event. That would mean a bakery couldn’t refuse to inscribe an anti-gay message on a cake — or a birthday message to someone named Adolf Hitler Campbell (which a New Jersey ShopRite said no to a few years ago). Under this approach, a cake would be viewed as a form of speech of the customer, not the baker.
No cake for you. The second possibility is an absolute discretionary rule that allows businesses to decline services or products when they substantially burden religious values. This could lead to a significant rollback of this country’s progress since desegregation. Even the sponsors of the Indiana law have indicated that they do not want such a broad rule.
Speech-free cake. A third option would be to allow a limited exception for expressive services or products. Under this approach, a bakery could not refuse to sell basic cakes to anyone but it could refuse to customize cakes with objectionable symbols or words. A florist could not refuse to supply standard flower arrangements from a pre-set menu but could object to designing and styling, say, the venue of a same-sex event. Likewise, photographers — whose work is inherently expressive, as they select particular moments to capture, frame compositions and create a product tailored to specific clients — could claim an expressive exception in declining to work at events they find offensive.
Frankly, none of these options is entirely satisfying, and all three would lead to tough cases on the margins. For instance, the uniformity and clarity of the “let them eat cake” approach is appealing. Yet it’s hard to imagine compelling Jewish bakers to make Nazi cakes or African American bakers to make KKK cakes. On the other hand, if we allow for expressive exceptions, we’ll have to determine whether or not a funeral director, say, is engaged in an expressive act.
If we are unwilling to impose an absolute rule of service regardless of content, then we need to be honest about our reservations and look more closely at how to allow people to opt out of certain expressive services. If people can decline offensive services, we need to focus our attention on defining those services that are inherently expressive and those that are not. We need to discuss not the central issue of discrimination but those cases on the margins that deal with legitimate speech. As Benjamin Franklin noted, “a great empire, like a great cake, is most easily diminished at the edges.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
A DESERTION CASE IN SEARCH OF A DEFENSE
Almost six years after he went missing in Afghanistan, Army Sgt. Bowe Bergdahl now faces criminal charges for desertion and misbehavior before the enemy that endangered his fellow soldiers. The course and delay of the investigation has raised serious questions of political manipulation of the case. After swapping five Taliban leaders with terrorism links for Bergdahl, President Barack Obama faced rising criticism not just for the release of such dangerous blood-soaked characters but also the violation of federal law in ordering the exchange. Worse yet, there are allegations soldiers may have been killed on missions that included efforts to locate Bergdahl.
Those questions are likely to return with a vengeance with the formal charge that Bergdahl was a deserter who abandoned his post and fellow soldiers in a combat area. His case could raise some interesting legal defenses and historical analogies. These cases also suggest that the most promising course for Bergdahl may be a plea bargain, though such a deal could raise political issues for the administration.
From the earliest accounts, the evidence against Bergdahl seemed to refute suggestions that he was a captive. Bergdahl stated that he had lagged behind a patrol and was captured, but there was no evidence of such a capture. There are also allegations that he actively sought contact with the Taliban and may have been a collaborator. For example, Bergdahl is accused of teaching the Taliban how to convert a cellphone into the base of an improvised explosive device. Then there is the strange reported conduct of Bergdahl before his disappearance. He reportedly sent his parents a uniform as well as messages that indicated his dissatisfaction with our country and the U.S. operations in Afghanistan. In one email, Bergdahl allegedly wrote his parents that “life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong… I am ashamed to even be (A)merican.” Then there is his description of his commander as a “conceited old fool” and his comrades as “the army of liars, backstabbers, fools and bullies.”
When such evidence is presented at trial, a defense becomes more complex and more nuanced to explain such statements and actions while denying the underlying charges. Complex personalities lead to complex defenses, but those are defenses that rarely work with jurors. Desertion is viewed by most people (particularly most people in uniform) as a simple and straightforward matter.
The most obvious comparison is with the trial of Marine Pfc. Robert Garwood, convicted of aiding the enemy in the Vietnam War. While other prisoners were released in 1973, Garwood did not come home until 1979 and faced allegations of collaboration, including working for the Vietnamese as a mechanic. Notably, there was no allegation that Garwood voluntarily left his post. The Garwood case shows that, even if Bergdahl maintains that he was captured, the military could still charge that he remained on his own free will and collaborated with the enemy. Garwood was ultimately able to secure acquittals on charges of desertion, solicitation of U.S. troops to refuse to fight and to defect and of maltreatment. However, he was convicted on charges of communicating with the enemy and the assault of an American prisoner of war interned in a POW camp. He was given a dishonorable discharge and other sanctions but not jail time. That would not be such a bad result for Bergdahl but there remains the added element of desertion in his case.
The other interesting case comparison is with the trial of Patti Hearst, heiress to the Hearst newspaper fortune. Again, there was not an allegation that Hearst went willingly when kidnapped in 1974 by the Symbionese Liberation Army. However, she appeared in a tape in 1974 announcing that she had joined the SLA. Assuming the name “Tania” (after the nom de guerre of Haydee Tamara Bunke Bider, a communist guerrilla and one of Che Guevara’s comrade in arms), Hearst appeared to change from captive to collaborator. Hearst was ultimately captured on film holding a M1 carbine while robbing a bank in San Francisco.
Hearst insisted that she was brainwashed and that the trauma of her confinement explained her conduct. It did not work, she was convicted of bank robbery in 1976 and sentenced to 35 years of imprisonment. President Jimmy Carter later commuted her sentence to two years, and she was eventually granted a full pardon by President Bill Clinton in 2001.
Bergdahl should not expect any similar presidential acts of sympathy, particularly from President Obama. After all, the administration paid dearly for his release and fellow soldiers may have paid with their lives.
The fact that Bergdahl may be a deserter might not have changed the merits of the decision to seek his release in a trade. President Obama must have known that there was an allegation of desertion before ordering the swap. It is clear that he acted out of an honest concern for an American in deplorable and dangerous conditions. However, the decision of the White House to avoid informing Congress, as required under federal law, clearly reflected a discomfort of the administration over the merits of such a trade with terrorists. That debate is now going to happen as part of a very public trial.
Indeed, it will be a challenge to insulate a trial from the powerful political winds swirling around Bergdahl and the deal that led to his freedom. The fact is that Bergdahl is not just a defendant. He has entered that dangerous realm of being a symbol in a political scandal.
In the end, it will not be a political symbol but an Army sergeant who will have to answer for these alleged crimes. Bergdahl may, for the first time, publicly answer some of these allegations for himself. It will not only be the first time that he will be heard, but the first answer that the public has received in months of controversy over his release.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors and has handled military and national security cases as criminal defense counsel.
MARCH 26, 2015
CHARLIE’S FALSE FRIENDS
I had the pleasure this month of writing a piece on free speech in the leading policy magazine in Switzerland, “Schweizer Monat.” The piece is published in German (Charlies falsche Freunde or Charlie’s False Friends), which is particularly cool for my son Benjamin who is taking German at McLean High School in Virginia. The German version can be found here. Germany is currently our fifth highest supplier of readers with Switzerland close behind. Ironically, Harvard Professor Cass Sunstein also wrote a piece in the same issue this month. The translated column is below:
It was one of the largest and most moving marches in the history of Paris. There in front of millions mourning the massacre of journalists at the magazine Charlie Hebdo were Western leaders joined French President Francois Hollande arm in arm proclaiming solidarity to show support for free speech. Everyone wanted to proclaim “Je suis Charlie” (“I am Charlie”) but a few of the surviving writers could be forgiven for feeling a bit confused. After all, the victims at the magazine were threatened for years with prosecution. Indeed, one surviving editor said that the displays of solidarity with the magazine made him want to “vomit.” For civil libertarians, it is clear that when leaders insist that they “Stand with Charlie” it does not mean actually standing with free speech. To the contrary, the greatest threat facing free speech today is found in Western governments, which have increasingly criminalized and prosecuted speech, particularly anti-religious speech. Once the defining right of Western Civilization, free speech is dying in the West and few world leaders truly mourn its passing.
Around the world, speech is under attack under an array of hate speech and anti-discrimination laws. It is irony of a new liberalism that the one thing that the West will not tolerate is intolerance. In the name of pluralism and tolerance, speech is being curtailed that insults or degrades individuals on the basis of religion, race, ethnicity, gender, sexual orientation, and other characteristics. The result is a growing, if not insatiable, appetite for speech regulation that only increases after violent responses to controversial publications.
The most recent tragedy in France follows an all too familiar pattern from publication to prosecution. Consider what happened in 2005 with the publication of the Danish cartoons and the global riots leading to the murder of non-Muslims and burning of churches and homes. The West rallied around the right of free speech, but then quietly ramped up prosecutions of speech. It happened again in 2012 when a low-budget trailer of a low-grade movie was put on YouTube. The “Innocence of Muslims” trailer was deemed insulting to Mohammad and Islam and led to another global spasm of murder and arson by irate Muslims. Again, Western leaders professed support for free speech while cracking down further on anti-religious speech. Even in the United States, President Obama insisted that the filmmaker Nakoula Basseley Nakoula had every right to make the film. However, the next image that the world saw after that speech was filmmaker being thrown into a police car in handcuffs for technical violations of a probation on unrelated charges. The Obama Administration clearly wanted the world to see that he was arrested. It was the perfect solution: free speech defended and free speech deterred.
This pattern continued this year in France. After President Hollande led the march in support of free speech, French prosecutors launched a nationwide crackdown on unpopular speakers. Some 54 people have been arrested since the Paris terror attacks. One of those detained was Dieudonne, who has been prosecuted for anti-Semitic jokes in the past. He ran afoul of the laws by posing a Facebook statement that he felt like “Charlie Coulibaly” — merging the names of Charlie Hebdo and Amedy Coulibaly, the gunman who killed four hostages at a Jewish deli.
Not surprisingly, cartoonists and comedians seem especially vulnerable under new speech codes. For example, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”
Western leaders have increasingly spoken out against the dangers of free speech. For politicians, free speech an abstraction, the consequences of free speech tend to be more tangible in the form of riots and murders. Of course, we would not need free speech protections for popular speech. It is in the protection of unpopular speech that defines a nation. While much of that speech can be hateful, it can also be transformative and illuminating on subjects of orthodoxy or the government itself. It is no accident that the vast majority of violent incidents are reactions to criticism of religion. Silencing these voices does not resolve any divisions. It creates the false appearance of agreement as those divisions remain and fester under the surface. Yet, forced silence is still appealing to many in government. After the 2012 murders, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.” Likewise, Australian Prime Minister Julia Gillard told the United Nations, “Our tolerance must never extend to tolerating religious hatred.” President Obama told the body that “the future must not belong to those who slander the prophet of Islam.”
For free speech advocates that future looks pretty bleak. Even when comments are themselves an expression of religious faith, Western government have cracked down on the speakers. For example, in Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice” by comparing the abortion of a woman to the medical experiments at Auschwitz. Likewise, a legislator in Austria, a publisher in India and a city councilman in Finland were prosecuted for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).
Some countries are now leading the West in the regulation of speech to deter people from publishing insulting or disparaging comments. Consider a few such examples.
• French court found fashion designer John Galliano guilty of making discriminatory comments in a Paris bar, where he got into a cursing match with a couple using sexist and anti-Semitic terms.
• France made the denial of the Turkish genocide of Armenians a crime but in 2012 a French court struck down the law. However, it remains a crime to deny that the Holocaust occurred.
• Famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy.
• In 2008, leading French author Pierre Péan, was put on trial (he was later acquitted) for racial hatred for derogatory things said about Tutsis in a book about Rwandan genocide. The case was based on four pages of the books in which Péan described Tutsis as having a culture of lies and deceit.
• In 2013, a mother was convicted of “glorifying a crime” after she named her son “Jihad” and then dressed the three-year-old in a sweater with the words “Je suis une bombe – I am a bomb” on the front, along with his name and ‘Born on September 11th’ on the back. He son was born on September 11, 2009.
• In Britain, for instance, a 15-year-old girl was arrested two years ago for burning a Koran.
• A 15-year-old boy was detained for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult.”
• An aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel’s bombardment of Gaza.
• A Baptist street preacher, Dale McAlpine was charged with causing “harassment, alarm or distress” after a homosexual police community support officer overheard him stating that he viewed homosexuality to be a sin.
• Barry Thew, 39, was convicted after he wore a handmade tee shirt with offensive anti-police words saying“One Less PiG Perfect Justice” and “KiLL A COP 4 Fun.co.uk HA, haaa?”
• In 2013, Sandwich shop owner Neil Phillips, 44, was arrested, his computer seized, and questioned for hours because he merely made a joke about Nelson Mandela clinging to life. Phillips was writing about his problems with his computer online when he quipped “My PC takes so long to shut down I’ve decided to call it Nelson Mandela.”
• Comedian Guy Earle was found guilty of violating the human rights of a lesbian couple after he got into a trash-talking session with a group of women during an open-mike night at a nightclub.
• Marc Lemire, the webmaster of a far-right political site, was punished for allowing third parties to leave insulting comments about homosexuals and blacks on the site. Federal Court Justice Richard Mosley ruled that “the minimal harm caused . . . to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.”
• “The Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, censured future speech that the commission deemed inappropriate.” While the Human Right Commission found “no direct victim . . . has come forward,” it still ordered damages paid to a college professor to brought the complaint and ordered the defendants to stop any future such “disparaging remarks.”
• In 2008, right-wing publisher Ezra Levant investigated by a tribunal for his publication of the Danish Mohammed cartoons for “advocating hatemongering cartoons in the media” and allegations from a Muslim that he was “defaming me and my family because we follow and are related to Prophet Mohammed.”
• In 2008, Maclean Magazine was charged with hate speech for publishing an article written by Mark Steyn entitled Why the Future Belongs to Islam. The British Columbia Human Rights Tribunal, demanded answers on why a few pages of the book were viewed as derogatory by complaining Muslims.
These cases represent more than a lack of support for free speech. They represent a comprehensive assault on free speech. Indeed, one of the world leaders proudly proclaiming support for free speech in Paris was banned the publication of the Charlie Hebdo cartoons. Turkish Deputy Prime Minister Yalcin Akdogan called the use of the prophet’s image on the magazine an act of “sedition and provocation.”
While the United States has fared better under First Amendment jurisprudence, the voices of speech regulation have been heard here as well. Recently, after a rodeo clown wore an Obama mask, there were calls for a hate crime investigation. There have also been efforts to ban advertisements criticizing Israel in subways, which were overturned by the courts. More worrisome was the support of the Obama Administration of a United Nations resolution that affirmed the right of countries to criminalize anti-religious speech to avoid “incitement.” The law was widely denounced as a new type of blasphemy law drafted by Muslim nations allied with the United States. Muslim countries have long sought to convince the West that speech is an act of incitement – a premise that runs against the very grain of free speech. Resolution 16/18 succeeded in allying the United States and other Western countries with the notion of speech as a form of violence – an alternative definition for what remain blasphemy prosecutions.
The greatest tragedy in the aftermath of the Paris massacre is that few are truly “standing with Charlie” in the Western world. It was a moving moment to see millions gather under the famous statue depicting Liberty, Equality and Fraternity. However, the terrible truth is that when you sacrifice liberty in the name of equality and fraternity, you inevitably end up with none of the three.
Jonathan Turley is a law professor at George Washington University and the host of http://www.jonathanturley.org, a leading free speech blog.
WHAT IT MEANS TO STAND WITH CHARLIE
Within an hour of the massacre at the headquarters of the Charlie Hebdo newspaper, thousands of Parisians spontaneously gathered at the Place de la Republique. Rallying beneath the monumental statues representing Liberty, Equality and Fraternity, they chanted “Je suis Charlie” (“I am Charlie”) and “Charlie! Liberty!” It was a rare moment of French unity that was touching and genuine.
Yet one could fairly ask what they were rallying around. The greatest threat to liberty in France has come not from the terrorists who committed such horrific acts this past week but from the French themselves, who have been leading the Western world in a crackdown on free speech.
Indeed, if the French want to memorialize those killed at Charlie Hebdo, they could start by rescinding their laws criminalizing speech that insults, defames or incites hatred, discrimination or violence on the basis of religion, race, ethnicity, nationality, disability, sex or sexual orientation. These laws have been used to harass the satirical newspaper and threaten its staff for years. Speech has been conditioned on being used “responsibly” in France, suggesting that it is more of a privilege than a right for those who hold controversial views.
In 2006, after Charlie Hebdo reprinted controversial cartoons of the prophet Muhammad that first appeared in a Danish newspaper, French President Jacques Chirac condemned the publication and warned against such “obvious provocations.”
“Anything that can hurt the convictions of someone else, in particular religious convictions, should be avoided,” he said. “Freedom of expression should be exercised in a spirit of responsibility.”
The Paris Grand Mosque and the Union of French Islamic Organizations sued the newspaper for insulting Muslims — a crime that carries a fine of up to 22,500 euros or six months’ imprisonment. French courts ultimately ruled in Charlie Hebdo’s favor. But France’s appetite for speech control has only grown since then.
The cases have been wide-ranging and bizarre. In 2008, for example, Brigitte Bardot was convicted for writing a letter to then-Interior Minister Nicolas Sarkozy about how she thought Muslims and homosexuals were ruining France. In 2011, fashion designer John Galliano was found guilty of making anti-Semitic comments against at least three people in a Paris cafe. In 2012, the government criminalized denial of the Armenian genocide (a law later overturned by the courts, but Holocaust denial remains a crime). In 2013, a French mother was sentenced for “glorifying a crime” after she allowed her son, named Jihad, to go to school wearing a shirt that said “I am a bomb.” Last year, Interior Minister Manuel Valls moved to ban performances by comedian Dieudonné M’Bala M’Bala, declaring that he was “no longer a comedian” but was rather an “anti-Semite and racist.” It is easy to silence speakers who spew hate or obnoxious words, but censorship rarely ends with those on the margins of our society.
Notably, among the demonstrators this past week at the Place de la Republique was Sasha Reingewirtz, president of the Union of Jewish Students, who told NBC News, “We are here to remind [the terrorists] that religion can be freely criticized.” The Union of Jewish Students apparently didn’t feel as magnanimous in 2013, when it successfully sued Twitter over posts deemed anti-Semitic. The student president at the time dismissed objections from civil libertarians, saying the social networking site was “making itself an accomplice and offering a highway for racists and anti-Semites.” The government declared the tweets illegal, and a French court ordered Twitter to reveal the identities of anti-Semitic posters.
Recently, speech regulation in France has expanded into non-hate speech, with courts routinely intervening in matters of opinion. For example, last year, a French court fined blogger Caroline Doudet and ordered her to change a headline to reduce its prominence on Google — for her negative review of a restaurant.
While France long ago got rid of its blasphemy laws, there is precious little difference for speakers and authors in prosecutions for defamation or hate speech. There may also be little difference perceived by extremists, like those in Paris, who mete out their own justice for speech the government defines as a crime. To them, this is only a matter of degree in responding to what the government has called unlawful provocations. As the radical Muslim cleric Anjem Choudary wrote this past week, “Why in this case did the French government allow the magazine Charlie Hebdo to continue to provoke Muslims?” Stéphane Charbonnier
It was the growing French intolerance of free speech that motivated the staff of Charlie Hebdo — and particularly its editor, Stéphane Charbonnier — who made fun of all religions with irreverent cartoons and editorials. Charbonnier faced continuing threats, not just of death from extremists but of criminal prosecution. In 2012, amid international protests over an anti-Islamic film, Charlie Hebdo again published cartoons of Muhammad. French Prime Minister Jean-Marc Ayrault warned that freedom of speech “is expressed within the confines of the law and under the control of the courts.”
Carbonnier wasn’t cowed — by the government pressure, the public protests or the inclusion of his name on a list of al-Qaeda targets. In an interview with the French newspaper Le Monde, he echoed Mexican revolutionary Emiliano Zapata and proclaimed, “I would rather die standing than live on my knees.” Carbonnier was the first person the gunmen asked for in their attack on the office, and he was one of the first to be killed.
The French, of course, have not been alone in rolling back protections on free speech. Britain, Canada and other nations have joined them. We have similar rumblings here in the United States. In 2009, the Obama administration shockingly supported Muslim allies trying to establish a new international blasphemy standard. And as secretary of state, Hillary Clinton invited delegations to Washington to work on implementing that standard and “to build those muscles” needed “to avoid a return to the old patterns of division.” Likewise, in 2012, President Obama went to the United Nations and declared that “the future must not belong to those who slander the prophet of Islam.”
The future once belonged to free speech. It was the very touchstone of Western civilization and civil liberties. A person cannot really defame a religion or religious figures (indeed, you cannot defame the dead in the United States). The effort to redefine criticism of religion as hate speech or defamation is precisely what Charbonnier fought to resist. He once said that by lampooning Islam, he hoped to make it “as banal as Catholicism” for the purposes of social commentary and debate.
Charbonnier died, as he pledged, standing up rather than yielding. The question is how many of those rallying in the Place de la Republique are truly willing to stand with him. They need only to look more closely at those three statues. In the name of equality and fraternity, liberty has been curtailed in France. The terrible truth is that it takes only a single gunman to kill a journalist, but it takes a nation to kill a right.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post (Sunday) January 11, 2014
TRUTH WILL OUT
Below is my column today in USA Today on the torture report.
As Shakespeare wrote in the Merchant of Venice, “truth will out.” The release of the report of the Senate Intelligence Committee was the long-awaited truth about one of this country’s most shameful chapters. Like water, truth has a way of finding its way out even against the determined obstruction. However, the question is what truth came out this week in the hundreds of pages of highly disturbing, and often disgusting, details of the “enhanced interrogation” program.
There are obvious “truths” about waterboarding being a crime and how torture is a poor vehicle for obtaining intelligence.
Then there are truths that are less obvious but equally clear in the pages of this report. Here are three such inconvenient truths that emerge from the Torture Report:
Truth #1: The CIA proved it is immune from legal restraints
As damaging as this report is to the reputation of the Agency, it reaffirms the underlying assumption that made the torture program possible: CIA officials enjoy effective immunity from the law.
The report details crimes that run gamut of the criminal code. It starts with torture itself that is not just a crime but a war crime. However, the report also details – and names some of those responsible – for destroying evidence, lying to Congress and obstructing investigations into the torture program. Former Director Michael V. Hayden is cited for actively telling employees to lie and for personally giving false information to Congress . CIA Deputy Director John McLaughlin was expressly called on the Senate floor by Sen. Dianne Feinstein for giving false information to Congress. CIA General Counsel Scott Muller in 2003 is quoted as lying to the White House about the existence of videotapes on the interrogations. The report details false statement after false statement given by past directors and high-ranking officials to Congress, to the White House and to the American people. It also details how, after CIA were told about inquiries into the legality of the torture program, officials promptly ordered the destruction of video tapes to get rid of the evidence.
Yet, what did all of that prove? It proved that the CIA could commit all of these crimes, even war crimes, and not face a single federal charge. Not one. The only thing more chilling than the torture carried out in our name was the fact that it was carried out with utter impunity.
Truth #2: The Justice Department First Facilitated Torture And Then Obstructed Its Prosecution
One of the least discussed “truths” in this study is the ignoble role played by the Justice Department. During the Bush Administration, figures like Jay Bybee and John Yoo issued the infamous “torture memos” that gave legal cover for the programs. The only thing more tortured than the subjects was the legal authority used to justify their abuse. However, the report also details how the Bush and Obama administrations obstructed the investigation at every turn. Six months after Congress began to investigate the program and was demanding to interview key players, Attorney General Eric Holder suddenly announced the Justice Department’s own investigation under John Durham. As soon as the Justice Department investigation was announced, virtually every key player refused to speak with congressional investigators in light of the internal investigation. As expected, Durham later found that not a single crime could be found. Not in the destruction of evidence. Not in the false statements. Certainly not in the torture itself.
Holder and the Justice Department proved as much enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the program itself.
Truth #3: Torture remains a question of effectiveness for many in government
Perhaps the most chilling truth is that the CIA and key American leaders continue to deny the very premise of both international and domestic laws. The key response of the CIA was to insist that the program was “effective” – the very rationale that is expressly rejected in the Convention Against Torture and other laws. It does not matter if torture was useful or productive. It is a war crime. We should know. We wrote that language saying that no nation can justify torture due to “exceptional circumstances” or effectiveness. Yet, the very agency that committed these crimes has continued to argue that those crimes were productive exercises.
The current debate over whether torture works reveals how far we have fallen as a nation in our view of this war crime. Not only does our embrace of torture threaten our own soldiers and citizens abroad, we have lost the moral high ground internationally. The truth is that torture could easily return to the United States so long as it is viewed as a practical question instead of a moral one.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
DECEMBER 10, 2014
FERGUSON AND THE MEANING OF “JUSTICE”
In anticipation of the decision on whether to indict officer Darren Wilson for the killing of Michael Brown, the town of Ferguson, Mo., is a virtual armed camp. Schools are closed. The National Guard was called out when the governor declared a state of emergency. The emergency? A grand jury announcement.
While most protesters have engaged in legitimate and lawful speech, others used the shooting of the black teenager by a white police officer as justification to loot the town. State and federal forces are assembling in Ferguson in expectation that some protesters will riot unless there is a criminal charge. Those who insist that “justice” can be found only in jail for Wilson are speaking not of real justice but mob justice.
After the fatal encounter on Canfield Drive, there was good reason for many to question the shooting of Brown. The 18-year-old was unarmed, and police say he had committed a minor theft before being stopped by Wilson. Given the continuing cases of the profiling and shooting of black males by police, there was ample reason for suspicion. However, there was also ample reason for caution before declaring Wilson was a murderer.
Within hours of the shooting, two clear and equally plausible narratives emerged. From the police account, Brown attacked Wilson after the officer confronted him for blocking the street. In the ensuing struggle in the patrol car, Brown was shot when he grabbed for the officer’s gun and then shot repeatedly outside of the vehicle. From the account of Brown’s friend (and others), Wilson gunned down Brown after the stop without provocation, including shooting him when he had his hands in the air. Each account has one of the men acting in an unprovoked and violent manner. If either account is true, it will be determined through investigations, not demonstrations.
Rioters, who somehow rationalized looting as acts of moral outrage, weren’t willing to wait for evidence. What is surprising is that national and local leaders showed the same impatience.
Soon after the shooting, Missouri Gov. Jay Nixon referred to Brown as the “victim” despite Wilson’s insistence that Brown attacked him. Nixon denounced the police for releasing video that they say shows Brown robbing a store and threatening the clerk as besmirching the victim. Nixon also called for the pursuit of “a vigorous prosecution” for the shooting. A governor’s foremost responsibility is to demand not prosecution but the truth from an unbiased investigation.
Premature federal role
Attorney General Eric Holder was also criticized for his reaction. Holder said he shared the same experience of profiling and abuse at the hands of police. As he did in the Trayvon Martin case, Holder sent in federal civil rights investigators before the initial investigation ended. Such federal investigations are ideally launched after state trials or, at a minimum, after an investigation is complete. When the federal government steps in, it can make the process look political and ultimately fuel discontent when it too rejects charges. Even before the grand jury has rendered its decision, The Washington Post reports that Holder’s investigators failed to uncover evidence to support civil rights charges.
That’s because the evidence in this case gives Wilson a strong defense. Brown allegedly was coming from the commission of a crime where he appeared to threaten a store clerk. The forensic evidence appears to contradict those who insist that Brown was not shot in a struggle but with his hands in the air. There is evidence that Wilson was injured in a struggle, the gun was discharged in the car and Brown was shot at close quarters leaving blood on the gun. Finally, more than a half-dozen black witnesses reportedly gave testimony supporting Wilson. Other scenarios could explain the evidence, and there is still the question of why so many shots were fired. But those questions might never be answered, a reality of some criminal cases.
The law requires us to deal with facts, and when those facts do not support a criminal charge, prosecution is barred regardless of popular demand.
In the end, it rings hollow to cry “no justice, no peace” when you are rioting or looting. There can be no justice if it is merely the result of demonstrations rather than demonstrated facts. Otherwise, the scales of justice become just one more object to throw through the window of an appliance store.
Jonathan Turley, a law professor at George Washington University and a member of USA TODAY’s Board of Contributors, has represented both protesters and police officers.
November 24, 2014
THE HOLDER YEARS AND THE PERILS OF POLITICS OVER PRINCIPLE IN GOVERNMENT
Below is my column on the resignation of Eric Holder as United States Attorney General. For civil libertarians, Holder’s tenure as Attorney General under President Obama has been one of the most damaging periods in our history with a comprehensive attack on various constitutional rights and principles from free speech to the free press to international law. As someone who previously called for Holder’s firing after the investigation of various journalists under national security powers, I am hardly one who can offer congratulatory sentiments for such a record. However, much like President Obama, one has to wonder what could have been if Holder had chosen a more principled and less political approach to his office. Holder is resigning the same week that a federal judge ordered the release of “Fast and Furious” documents after the Justice Department was accused of a pattern of delay and obstruction. Holder was previously held in contempt by Congress for his withholding documents and conflicting accounts to an oversight committee looking into the scandal. Indeed, Holder was looking at an even more aggressive period with the possible loss of the Senate and increased GOP seats in the House.
Ironically, Holder came into office trying to distinguish himself from such disastrous predecessors as Alberto Gonzales but proved no less political or blindly loyal to his own president. Indeed, both men fought aggressively to expand the powers of the presidency and national security laws over countervailing individual rights and separation of powers principles. It will be civil liberties and not civil rights that will be the lasting, and troubling, legacy of Eric Holder. The column is below:
The resignation of Eric Holder as attorney general is an unavoidably symbolic moment for an administration that itself appears to be waning in the final years of a troubled second term. Holder truly personifies an administration of unrivaled ambitions colliding with inescapable realities.
He proved a fierce friend to President Obama, and that loyalty might have worked to the disadvantage of both men. After a series of major court defeats and public controversies, Obama (like President Bush before him) might have been served better by an attorney general who was more detached from him and more attached to the constitutional principles that shape both their offices.
Holder has secured a well-earned position for himself in history as the nation’s first black U.S. attorney general. He is by any means an American success story. The son of a father born in Barbados and raised in New York, Holder used his considerable intellect to go to Columbia University for both college and law school. He was made a judge on the local D.C. court by President Reagan and was appointed U.S. attorney for the District of Columbia by President Clinton, who later made him deputy attorney general.
Holder’s life should be both an inspiration and a cautionary tale for young lawyers. As he ascended into power, Holder became increasingly viewed by critics as a bit too ambitious and political within the Justice Department. That reputation was reaffirmed for many with Clinton’s last-minute pardon of fugitive and major Democratic donor Marc Rich. By any objective measure, Rich was one of the least deserving pardon applicants in history — with 65 criminal counts, from tax evasion to wire fraud to racketeering to illegal trades with Iran. While his companies later pleaded guilty to 35 criminal counts, Rich fled to live the good life in Switzerland. Besides a long list of alleged felonies, Rich had a long list of friends close to Clinton … and Clinton in turn had Eric Holder.
Holder was accused of short-cutting the normal procedures to push through the pardon for Rich. Though he said he was “neutral” on the pardon (which itself is a bit shocking), former FBI director Louis Freeh said the Clinton White House had “used” Holder to keep the FBI and the DOJ from being heard on the pardon.
In his confirmation hearing, Holder promised not to have a repeatof the Rich scandal and not to allow politics to influence his decisions. It was a defining moment and one that Holder would have been wise to work to live up to.
But it did not take long for Holder’s inspiring “Mr. Smith comes to Washington” story to become “all the king’s men.” When the president was confronted with demands to investigate and prosecute individuals for torture under the Bush administration, Holder faced an early test of principle. He failed. The Justice Department blocked any prosecution despite our obligation under international treaties and the president’s (and Holder’s) acknowledgment that waterboarding is clearly a form of torture.
To quote Jerry Maguire, Obama had Holder at “hello” in seeking unbridled presidential authority. Many of the cases that Holder brought and policies that he supported resulted in startling defeats. He lost a series of criminal cases seeking massive reductions in privacy and due process protections for citizens. He unwisely pursued cases such as Canning, where a unanimous Supreme Court curtailed the powers of the president to make recess appointments.
Holder personally announced Obama’s “kill list” policy, in which the president claimed the right to kill any U.S. citizen on his sole authority without a charge, let alone a conviction. Holder’s department used the controversial Espionage Act of 1917 to bring twice the number of such prosecutions of all prior presidents under the Act. Journalists were placed under surveillance in a record that rivaled that of President Nixon. Holder led an appalling crackdown on whistle-blowers. Holder fought to justify massive warrantless surveillance and unchecked presidential authority to attack other countries without congressional approval.
Holder’s continual confrontations with Congress came to a head in a series of scandals, including the “Fast and Furious” controversy in which the government allowed drug gangs to get high-powered weapons in a truly moronic “gun walking” program. In that and other scandals, the administration withheld documents and key witnesses from oversight committees. Holder was wrong and was ultimately held in contempt of Congress.
While Holder can be credited with not shying away from our race conflicts, his actions such as intervening in the Zimmerman case (after the shooting of Trayvon Martin) and the recent Ferguson shooting were viewed by many as premature. His calling the United States a “nation of cowards” on race was a brave but also a divisive moment. In the end, however, his positive work in the area of civil rights will ultimately be eclipsed by his destructive legacy in the area of civil liberties and constitutional government.
The sad truth is that Holder could have been truly great — not simply as the first black attorney general but as a man of principle who stood with the law over politics and friendship. In one of the great lost opportunities in history, Holder will finish his tenure as he began it: a man with great but still unrealized potential.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA Today’s Board of Contributors.
——————————————————————–THE PERRY INDIC————————————-TMENT: ALL HAT, NO CATTLE
Below is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.
At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.
Here is the column:
The news of the indictment of Texas Gov. Rick Perry late Friday thrilled many of his critics around the country, but it perplexed anyone who actually read the indictment. The charges against Perry, who was scheduled to be booked on Tuesday, stem from his carrying out a threat to veto the funding of a “public integrity” office after its chief prosecutor was incarcerated. How a seemingly political act became an alleged criminal offense is a Texas tale more twisted than the Brazos.
The controversy began on April 12, 2013, when someone called 911 to report a vehicle driving dangerously. Inside the car, the police found District Attorney Rosemary Lehmberg. Inside Lehmberg they found almost three times the legal level of alcohol. Worse yet, videos showed a combative Lehmberg badgering officers, invoking her status as district attorney and, according to police, acting so violent that she had to be restrained.
Many people (including Perry) called on Lehmberg to resign, particularly after she was sentenced to 45 days in jail. Lehmberg refused.
Perry then publicly threatened that he would veto the budget for her office if she remained in her position. In my view, he was wrongheaded in making such a threat, particularly given Lehmberg’s position heading the Public Integrity Unit with jurisdiction over politicians like Perry. However, Perry made good on his word and, when the budget came through, he vetoed the $7.5 million in funding for the Travis County Public Integrity Unit.
That action led a liberal watchdog, Texans for Public Justice, to file a complaint alleging a variety of crimes, including an implausible allegation of bribery, against Perry.
The indictment in Texas v. Perry is based on two state laws, including one that is maddeningly vague and another that has little applicability to this type of circumstance. The charge, Abuse of Official Capacity, refers to public servants who “intentionally or knowingly” misuse government property or services or personnel. It is a provision that would be more fitting if Perry used the $7.5 million for a romp in Vegas. The state provision is incredibly ambiguous, and there is no direct precedent for its use in this type of case. Indeed, such vague provisions are often passed because most prosecutors practice discretion and restraint — both of which was missing here.
The second count refers to attempting to influence “a public servant in a specific exercise of his official power or a specific performance of his official duty.” The “specific exercise of his official power or a specific performance” in this case would be the resignation from office. That is obviously not the intent or purpose of this law.
Perry made this threat publicly. He was using (unwisely) the threat of a budget cut to deal with someone that he (wisely) viewed as a disgrace to her office. There is no precedent directly supporting this charge against Perry, but at least one case seems to contradict it. In 1990, a Texas appellate court ruled that a threat of a lawful action cannot constitute coercion of a public official. Perry is allowed under the Texas Constitution to veto a budget item, and the legislature may override him. Indeed, most of this case turns not on the vetoing of the appropriations line, but threatening to do so in advance. Had he simply cut the funding with little more than a smirk, he would have presumably been free and clear.
When you decide to criminally charge a governor in a case with serious constitutional implications, you should have strong facts and clearly applicable law. Few people (including Perry) would have been put on notice that such laws could be used to criminalize this political dispute. Michael McCrum, the special prosecutor handling the case, had to pound very hard to get these square facts into round holes. A bit too hard.
The problem is that such constitutional concerns can get lost in a trial, as shown by the trial of another governor: Illinois Democratic Gov. Rod Blagojevich. Blagojevich was given a 14-year sentence for seeking a quid pro quo arrangement in exchange for the appointment of a replacement for the Senate seat Barack Obama vacated to become president. Many of us criticized the indictment for criminalizing common political horse-trading. However, Blagojevich was hurt by witness testimony and recordings with vulgar and raw exchanges between politicians. It reaffirmed the view of many that politicians are untrustworthy and sleazy.
In fairness to the prosecutor in Texas, we have not seen the evidence he intends to bring to court. Raw behind-the-scenes testimony can color a case and distract from what might seem abstract arguments based on inherent executive authority. Many jurors find it a challenge to give any politician a presumption of innocence in any forum.
However, at the moment, this indictment is short on the law and even shorter on the facts. It looks like what they call people in Texas who dress up to look like cowboys but have never gotten closer to a steer than a T-bone at an overprized Dallas steakhouse. To put it simply, the Perry indictment is “all hat, no cattle.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
August 21, 2014 USA Today
FIVE MYTHS ABOUT IMPEACHMENT
This month, Washington seems caught in some strange time loop. We American president allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment.
According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system.
Some 40 years after Richard Nixon resigned to avoid his likely impeachment by the House of Representatives, Washington is again talking impeachment. Members of Congress are denouncing the president’s contempt for constitutional law, while the president is raising money to fight the effort to remove him. But this time, the money pouring in would be just as well spent on defense against Bigfoot. Much of the debate has been more mythological than constitutional.
1. An impeachable offense is anything Congress says it is.
People pushing for President Obama’s impeachment have cited rationales ranging from the border crisis to Benghazi to Obamacare to the dismantling of “our constitutional republic, our national security, our electoral system, our economic strength, our rights and liberties.” In other words, anything goes. This echoes the characterization by Gerald Ford, who as House minority leader in 1970 made the ill-considered statement that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (This interpretation was, not surprisingly, part of a frivolous effort to impeach Supreme Court Justice William O. Douglas, whom Ford denounced for espousing “liberal opinions,” for defending the “filthy” Swedish film “I Am Curious (Yellow)” and for writing a magazine article that “praises the lusty, lurid, and risque along with the social protest of left-wing folk singers.”)
But Congress’s exclusive power to impeach does not license it to abuse that power, any more than the Supreme Court’s final say on laws gives it license to deliver arbitrary rulings. The framers carefully defined the grounds for impeachment as “treason, bribery, or other high crimes and misdemeanors” — language with British legal precedent. They clearly did not want removal of the president subject to congressional whim. Indeed, they rejected the addition of “maladministration” after James Madison cautioned that “so vague a term will be equivalent to a tenure during pleasure of the Senate.”
It is the standard that justifies the power, not the inverse, as Ford saw it. The fact that only two presidents have been impeached, and none have been removed, suggests that most members of Congress take the impeachment standard seriously.
2. An impeachable offense must involve a violation of criminal law.
While there’s a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable. Serious misconduct or a violation of public trust is enough. Madison saw impeachment as “defending the community against the incapacity, negligence or perfidy of the chief magistrate.” And the founders emphasized that impeachments were about what happened in the political arena: involving “political crimes and misdemeanors” and resulting in “political punishments.”
So consider the $454 million Obama shifted out of the Affordable Care Act’s Prevention and Public Health Fund. He wouldn’t have to pocket that money to warrant impeachment. But he’d have to do more than he did: redirect it to another purpose without congressional approval and offer a faulty interpretation of the act. If the president were to openly defy clear federal authority and order unlawful acts, he would move from the realm of using arguable discretion to that of being a danger to the system as a whole.
3. History establishes a clear precedent for impeachable conduct.
Regrettably, this is also untrue. Bill Clinton was impeached primarily for criminal conduct: lying under oath and misleading a federal grand jury about his affair with Monica Lewinsky. Nixon would have been impeached for a wide array of criminal acts, as well as abuses of power.
President Andrew Johnson’s impeachment in 1868 may be the most relevant to the current controversy. Like Obama, Johnson was accused of unconstitutional executive appointments, misuse of federal funds and violating federal law. Most significantly, he replaced Secretary of War Edwin M. Stanton in open defiance of the Tenure of Office Act — a law passed over his veto and later found unconstitutional by the Supreme Court. The feeble merits of his impeachment were captured best in the 10th article, charging Johnson with delivering three speeches that disrespected Congress.
4. Impeaching a president is like recalling a governor.
Many people discuss impeachment as a way to express dissatisfaction or as a mechanism allowing for a change in leadership. “Impeachment is no more or less than the recall of an elected official who isn’t up to the job,” conservative columnists Floyd and Mary Beth Brown wrote. “Obama deserves recall much more than Gov. Gray Davis, and he was replaced by Gov. Arnold Schwarzenegger in a special recall election Oct. 7, 2003, in California.”
In Britain and other parliamentary systems, the legislature can end the term of a head of government early with a no-confidence vote, showing that he or she has lost the support of the country. But the United States rejected that approach in favor of greater stability and the predictability of a four-year presidential term.
It doesn’t matter that polls show more than 50 percent of Americans disapprove of the job Obama is doing. Unpopularity is not an impeachable offense. And impeachment was not designed as relief for voter remorse.
5. Obama is in danger of impeachment.
House Republicans on Wednesday voted to sue Obama for exceeding his constitutional authority when implementing the Affordable Care Act. The idea that the lawsuit is a prelude to impeachment, however, is primarily coming from the White House and its allies as they try to rally the Democratic base ahead of the midterms. House Speaker John Boehner has done everything short of hiring blimps to say that there will be no impeachment.
Obama is as likely to be impeached as he is to be installed as the next pontiff. And I say that as someone who has testified in Congress that this president has violated federal laws, unconstitutionally appointed various executive-branch officers and improperly transferred money. Nevertheless, many of these disputes have divided judges on the merits. Presidents are allowed to challenge Congress in such conflicts without being subject to impeachment. Where they cross the line is when they ignore final judicial rulings in acts of contempt of both courts and Congress. Obama has not done that.
There are, however, serious questions raised by the president’s pledge to go it alone in areas ranging from health care to immigration. And there is a real crisis in how our system is changing with the rise of the uber-presidency. That’s the threat that deserves attention and debate. We can leave this Bigfoot sighting in the constitutional wilderness.
Jonathan Turley, the Shapiro professor of public interest law at George Washington University, has testified in Congress about impeachment and served as lead defense counsel for Judge Thomas Porteous in his Senate impeachment trial.
Washington Post (Sunday) August 3, 2014
________________________________________________________________________________________________________SEEING RED AND BLUE: CRITICS ATTACK JUDGES IN DC AND 4TH CIRCUITS OVER HEALTH CARE RUINGS
Below is my column today in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our time that we no one debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. I would not call either opinion as entirely “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. Here is the column.
When the District of Columbia Circuit ruled last week that the Obama administration was violating the Affordable Care Act (ACA) in authorizing billions in tax credits, it took little time for leading Democrats to respond. Senate Majority Leader Harry Reid promptly labeled the ruling in Halbig v. Burwell “absurd,” simply the work of “activist Republican judges.” Less than two hours later, Democratically appointed judges across the river in Virginia reached the opposite result in King v. Burwell. The response from the right was equally predictable: The judges were Democratic drones carrying the water for the White House.
In a scripted town that defines all issues in blue or red, the lineup of the judges fits both parties’ preferred narrative. The opposing side was reduced to shameless opportunists. With that, the world made perfect sense and everyone was happy. The Potomac became simply another river with a left and right bank. Where you stand determines what is true.
The only problem is that none of it is true.
The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.
I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)
The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.
Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.
At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.
The conflict could have involved chicken subsidies, and the result would have been the same.
Similarly, when the Supreme Court comes out with a 5-4 opinion, both parties denounce the justices on the opposing sides as ideologues — ignoring the obvious problem that the justices on their side showed the same predictable alignment. The reason that the result was predictable is that honest jurists strive to consistently apply principles of statutory interpretation.
Reid, however, assured Democrats that when the Halbig case goes before the full D.C. Circuit, a majority of Democratically nominated judges means it becomes “simple math.” Republicans are saying the same about the Supreme Court lineup. Both sides could find themselves disappointed. Jurists are not so easily pegged by political affiliation like some election night red or blue states on CNN’s “magic wall.”
What occurred last week on either side of the Potomac captured a divide in legal theory that has existed for decades, not cheap partisan politics.
Of course, none of this matters in today’s politics. People who disagree with us must be without honor. It is not enough to disagree with judges’ opinions; we must despise the judges. Regardless of how the next group of judges come out on these interpretive questions, we should at least be willing to accept that they are acting on long-standing judicial principles, not the partisan emotions of the moment.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
July 30, 2014
A TALE OF TWO CIRCUITS: OBAMACARE IS EITHER ON LIFE SUPPORT OR IN ROBUST HEALTH
Below is my column today in the Chicago Tribune on the rivaling rulings in the D.C. Circuit and the Fourth Circuit over a critical provision under the Patient Protection and Affordable Care Act (ACA). As an academic interesting in statutory interpretation and legisprudence, the opinions are fascinating and capture two different but well-argued views of the role of both courts and agencies in dealing with legislative language.
Call it the “Tale of Two Circuits.” It was either the best of times or the worst of times yesterday for Obamacare.
Within hours of each other yesterday, two federal appellate courts looked at the Patient Protection and Affordable Care Act (ACA) on the same issue involving the same provision and came to diametrically opposite conclusions.
In Halbig v. Burwell, the D.C. Circuit ruled that the Obama Administration changed the meaning of the ACA and wrongly extended billions of tax credits to citizens without congressional authority. It was a stunning loss for the Administration. However, a couple hours later, the neighboring Fourth Circuit across the river ruled in King v. Burwell. That three-judge panel ruled that the Administration was perfectly within its rights to interpret the law in this fashion. Depending on which bank of the Potomac you stand on, Obamacare is either in robust health or on life support.
While the decisions have caused a whirlwind of political controversy, neither really turn on the question of national health care. Indeed, these two cases represent well reasoned but conflicting views of the role of court in statutory interpretation. The conclusion of these rivaling approaches hold the very viability of the ACA in the balance. That answer may have to wait for another appeal to the full courts of these respective circuits and ultimately an appeal to the United States Supreme Court.
In Halbig, Judge Thomas B. Griffith ruled that the statute is clearly worded on a key point of the law. At issue is the very thumping heart of the Obamacare: the system of state and federal “exchanges” through which citizens are required to purchase insurance. The law links the availability of tax credits to those states with exchanges “established by the state.” However, the Administration was caught by surprise when some 36 states opted not to create state exchanges. That represented a major threat to Obamacare. Without the credits, insurance would be “unaffordable” for millions of citizens who can then claim an exemption from the ACA. It would allow a mass exodus from the law – precisely what many citizens and critics have wanted.
To avoid that threat, the Obama Administration released a new interpretation that effectively read out “state” from the language – announcing that tax credits would be available to even states with only a federal exchange.
The D.C. Circuit ruled that the “interpretation” was really a re-writing of the federal law and that President Obama had over-reached his authority in violation of congressional power.
The Fourth Circuit came to the opposite conclusion. The court believed that the IRS was entitled to deference by the courts in what these laws mean in cases of ambiguity. The panel considered the law to be unclear and found that it was reasonable for the IRS to adopt an interpretation that guaranteed tax credits to all citizens.
At the heart of the conflict is a fundamentally different view of the role not just of federal courts but also of federal agencies. I have long been a critic of the rise of a type of fourth branch within our system. The Framers created a tripartite system based on three equal branches. The interrelation of the branches guarantees that no branch could govern alone and protects individual liberty by from the concentration of power in any one branch.
We now have a massive system of 15 departments, 69 agencies and 383 nonmilitary sub-agencies with almost three million employees. Citizens today are ten times more likely to be the subject of an agency court ruling than a federal court ruling. The vast majority of “laws” in this country are actually regulations promulgated by agencies, which tend to be practically insulated and removed from most citizens.
The Supreme Court ruled in 1984 in Chevron that agencies are entitled to heavy deference in their interpretations of laws. That decision has helped fuel the growth of the power of federal agencies in this fourth branch. The court went even further recently in Arlington v. FCC in giving deference to agencies even in defining their own jurisdiction. In dissent, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
Regardless of the merits of the statutory debate over the ACA, the question comes down to who should make such decisions. For my part, I agree with the change but I disagree with the unilateral means that the President used to secure it. President Obama has pledged to “go it alone” in circumventing opposition in Congress. The Fourth Circuit decision will certainly help him fulfill that pledge. The result is that our model of governance is changing not by any vote of the public but by these insular acts of institutional acquiescence.
The court may call this merely deferring to an agency but it represents something far greater and, in my view, far more dangerous. It is the ascendance of a fourth branch in a constitutional system designed for only three.
Jonathan Turley is the Shapiro Professor of Public Interest Law and has testified before Congress on the constitutional implications of the health care cases.
CHICAGO TRIBUNE July 23, 2014
POLITICS BY OTHER MEANS: OBAMA’S WATER WAR ON POT
Below is my column today in USA Today on the Obama Administration’s decision to cut off water to legal marijuana growers. Notably, the business concern today for the rollout of legal pot sales in Washington is greater demand than supply. I previously wrote about how a little known board had effectively moved to end the debate over the Redskins name, an example of agencies increasingly intervening in social and political disputes. This move by the Bureau of Reclamation is a prime example of such intervention into political disputes and a troubling precedent for the future.
When voters in Washington state and Colorado legalized possession and sale of recreational marijuana in 2012, federal officials were not happy. They will be less happy Tuesday when pot officially goes on sale in Washington. Though the Obama administration has pledged to respect state laws, it is quietly going in the opposite direction by cutting off water to the growers. The idea seems to be that if the administration cannot dry up the public support for legalization, it will just dry up the plants themselves.
Like areas from health care to immigration, a sharp disconnect between voters and their government is growing by the day. The administration and Congress are losing the debate over legalization.
Many citizens do not see the logic or necessity in the crackdown on pot. Support for legalization is soaring. In 1987, only 16% supported legalization. That increased to 26% in 1996 and 43% in 2012. It now stands at 55%. Two states have responded with legalization, others have taken a smaller step of decriminalization, and 20 states have legalized medical marijuana over the opposition of the federal government.
With other programs such as health care already endangering Democrats in the next election, the administration does not want to openly oppose the wishes of more than half of the population. With one hand, it allows state experimentation, while the other hand, the Bureau of Reclamation turns off the spigot by ordering irrigation districts not to distribute federal water to farmers breaking national drug laws. No water, no pot.
The use of water as a weapon is not new in the West, where “water wars” were once common among ranches and even states. The federal government began in 1902 to take control over such waters with programs to build dams and waterways. What began as a few dozen projects grew into a massive system, in which the federal government controlled a significant portion of the water in 17 states with the construction of more than 600 dams and reservoirs. It is now the nation’s largest water wholesale operation, supplying to more than 31 million people and one out of five farmers in the West. It is not just water. The government’s 53 power plants annually provide more than 40 billion kilowatt hours that support millions of homes.
Though some have long chaffed at federal control over this essential resource, the government has insisted that its projects are designed to simply maximize the use of the resource. Indeed, with the growing national crisis over the loss of drinking water and many states experiencing droughts, the role of a neutral federal agency has never been more important.
That is why this latest move is so dangerous. The government already coerces states by withholding money unless they follow federal mandates. If the feds can now withhold water or electricity, too, that stranglehold will tighten.
The government supplies the water that sustains 10 million acres of farmland, and the farms that produce 60% of the nation’s vegetables and 25% of its fruits and nuts.
In Washington, that translates to the water for two-thirds of the state’s irrigated land.
Bureau spokesman Dan DuBray insists that the agency “is obligated to adhere to federal law.” However, that position is inconsistent with the actions of the Obama administration in other areas.
I testified in Congress on Obama’s non-enforcement orders issued in areas such as immigration and drug enforcement. In addition, Obama has issued controversial orders that effectively amend federal laws in ways that Congress had rejected. It rings rather hollow for the administration now to claim that it has no choice but to take this action to indirectly support drug laws when it has ordered the non-enforcement of so many others.
This is even less plausible when one considers that the Justice Department has altered its enforcement of the drug laws in light of state legalization. The administration is directly curtailing enforcement of the Controlled Substances Act, but a water agency is changing its operations to enforce that same law by other means. The agency could have simply supplied water to every state neutrally. Instead, it is taking action to punish these states.
The shutting off of the water in Washington and Colorado for these growers is not about pot but politics. Carl von Clausewitz once observed that “war is the continuation of politics by other means.” The same can be said about the opening salvo in a new water war.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
GOODBYE HOBBY LOBBY, HELLO HALBIG: GET READY FOR AN EVEN GREATER THREAT TO OBAMACARE
Below is my column today in the Los Angeles Times on a little discussed case that presents a far greater threat to Obamacare than did Hobby Lobby. The Hobby Lobby case is a huge blow for the Administration in terms of one of the most prominent provisions of the Act and recognizing religious rights for corporations. However, it is more of a fender bender for the ACA. Halbig could be a train wreck of a case if it goes against the Administration. We are expecting a ruling any day and the panel is interesting: Judges Harry T. Edwards (a Carter appointee), Thomas B. Griffith (a George W. Bush appointee), and A. Raymond Randolph (a George H.W. Bush appointee). In oral argument, Edwards was reportedly highly supportive of the Administration’s argument while Randolph was very skeptical. That leaves Griffith. It could go 2-1 either way, though in my view the interpretive edge goes to the challengers for the reasons discussed below.
Now that the Supreme Court has issued its ruling in the Hobby Lobby case, the legal fight over the Affordable Care Act will shift a few blocks away to another Washington courtroom, where a far more fundamental challenge to Obamacare is about to be decided by the powerful U.S. Court of Appeals for the D.C. Circuit. Indeed, if Hobby Lobby will create complications for Obamacare, Halbig vs. Burwell could trigger a full cardiac arrest.
The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.”
But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.
Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn’t establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.
The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute’s language does limit subsidies to residents of places with exchanges “established by the state,” that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.
But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.
In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments.
The D.C. Circuit Court is expected to rule any day now on the Halbig case, and supporters of the Affordable Care Act are growing nervous. In January, an Obamacare advocate described the Halbig case to a reporter for the Hill as “probably the most significant existential threat to the Affordable Care Act. All the other lawsuits that have been filed really don’t go to the heart of the ACA, and this one would have.” And in a fraught oral argument before the D.C. Circuit Court, the administration seemed to struggle to defend its interpretation.
If the ruling goes against the White House, it’s hard to overstate the impact. Without subsidies, consumers in 34 states would face huge additional costs and, because of those costs, potential exemptions from the law. And voters — a substantial percentage of whom have never liked Obamacare — would be further alienated from the Democratic Party just in time for midterm elections.
Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.
The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.
Jonathan Turley is a professor of law at George Washington University and has testified in Congress on the executive orders under the Affordable Care Act.
July 1, 2014 – Los Angeles Times
RESTORING BALANCE TO THE BRANCHES
Below is my column in the Sunday Washington Post on separation of powers — authored with United States Senator Ron Johnson (R, Wis.). As the piece states, Johnson and I come from sharply different political perspectives, though the most surprising aspect of this collaboration is that he is a Packers fan and I am a Bears fan. We decided to write a piece together to try to seek a nonpartisan response to the rapidly expanding executive power in our system — and the corresponding decline of legislative power. We have been discussing this worrisome shift within our system and the lack of any collective institutional identity, let alone action, from members. We thought, if we could show the common ground in these concerns, it might encourage other members to reach across the aisle in the interests of their institution.
The controversy over President Obama’s decision to exchange five high-ranking Taliban leaders for Army Sgt. Bowe Bergdahl last month focused largely on the price paid. There was less focus on Obama ignoring a federal law that required him to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay, Cuba. Laws such as this have been enacted to allow vital oversight of actions of such consequence. If this were an isolated instance, it could be dismissed. It is not.
After announcing that he intended to act unilaterally in the face of congressional opposition, Obama ordered the non-enforcement of various laws — including numerous changes to the Affordable Care Act — moved hundreds of millions of dollars away from the purposes for which Congress approved the spending and claimed sweeping authority to act without judicial or legislative controls.
A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers — and accountability — within our government. This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency. Indeed, it is enough to bring the two of us — a liberal academic and a conservative U.S. senator — together in shared concern over the future of our 225-year-old constitutional system of selfgovernance.
We believe that people of good faith can likewise transcend politics and forge a bipartisan coalition to examine these changes. In our view, the gridlock in Washington is not simply the result of toxic divisions. The dysfunctional politics we are experiencing may in part be the result of a deeper corrosion — a dangerous instability that is growing within our Madisonian system.
No one can predict with certainty what will follow the Obama administration. The only thing we know is that a new president will be elected in 2016 and congressional majorities will continue to shift. That uncertainty offers a window of opportunity for members of both parties, academics and others to come together to focus on three questions that may determine the viability of the separation of powers for decades to come.
First, we need to discuss the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government — a vast network of federal agencies with expanded legislative and judicial power. While the federal bureaucracy is a hallmark of the modern administrative state, it presents a fundamental change to a system of three coequal branches designed to check and balance each other. The growing authority invested in federal agencies comes from a diminished Congress, which seems to have a dramatically reduced ability to actively monitor, let alone influence, agency actions.
Second, much of the tit-for-tat politics that has alienated so many Americans is due to the fact that courts routinely refuse to review constitutional disputes because of an overly constricted view of the standing of lawmakers to sue and other procedural barriers. While there can be legitimate disagreement over how and when legislative standing should apply, current legal barriers rob the system of a key avenue for resolution of such conflicts. A modest expansion of standing would provide greater clarity to the line of constitutional separation without causing a flood of cases.
Finally, Congress should address the rising share of federal spending that is not under its control. Last year, only 35 percent of spending was appropriated and voted on. The remaining 65 percent grows automatically. As a result, our debt exceeds the size of our economy, and Congress is losing its critical “power of the purse.”
The Supreme Court found in National Labor Relations Board v. Noel Canning this week that the president violated the separation of powers in his use of his appointment powers. Also this week, House Speaker John A. Boehner (R-Ohio) announced a lawsuit challenging the Obama administration’s unilateral actions. A lawsuit by one of us — Sen. Johnson — is raising some of the same issues with regard to Obamacare and will be heard next month. However, such cases will take years to resolve, and Congress needs to speak with one voice as an institution at this critical time. The Canning decision should be a catalyst for all members to look at the comprehensive loss of legislative authority in our system.
The framers believed that members of each branch of government would transcend individual political ambitions to vigorously defend the power of their institutions. Presidents have persistently expanded their authority with considerable success. Congress has been largely passive or, worse, complicit in the draining of legislative authority. Judges have adopted doctrines of avoidance that have removed the courts from important conflicts between the branches. Now is the time for members of Congress and the judiciary to affirm their oaths to “support and defend the Constitution” and to work to re-establish our delicate constitutional balance.
It will not be easy, but the costs of inaction are far higher. We need to look beyond this administration — and ourselves — to act not like politicians but the statesmen that the framers hoped we could be.
Ron Johnson, a Republican, represents Wisconsin in the Senate. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Washington Post Sunday June 29, 2014
ANOTHER FEDERAL AGENCY GOES OUT OF BOUNDS ON REDSKINS NAME
The decision this past week by the U.S. Patent and Trademark Office to rescind federal trademark protections for the Redskins may ultimately tip the balance in the controversy over the 80-year-old name of Washington’s football team. If so, that would be a shame. Not because there’s insufficient reason to consider the name “disparaging to Native Americans,” as the patent office determined. Many of us recoil at the reference to skin color as a team identity. The problem is that the Redskins case is just the latest example of a federal agency going beyond its brief to inappropriately insert itself in social or political debates.
Few people would have expected the future of the Redskins to be determined by an obscure panel in a relatively small government agency. Yet the Trademark Trial and Appeal Board showed little restraint in launching itself into this heated argument — issuing an opinion that supports calls for change from powerful politicians, including President Obama and Senate Majority Leader Harry Reid (D-Nev.). The board had at its disposal a ridiculously ambiguous standard that allows the denial of a trademark if it “may disparage” a “substantial composite” of a group at the time the trademark is registered.
This standard isn’t concerned with how widely offensive a trademark may be now, or with how the general population or even a majority of the group in question views it. It didn’t matter to the patent office that polls show substantial majorities of the public and the Native American community do not find the name offensive. A 2004 Annenberg Public Policy Center poll found that 90 percent of Native Americans said the name didn’t bother them. Instead, the board focused on a 1993 resolution adopted by the National Congress of American Indians denouncing the name. The board simply extrapolated that, since the National Congress represented about 30 percent of Native Americans, one out of every three Native Americans found it offensive. “Thirty percent is without doubt a substantial composite,” the board wrote.
Politicians rejoiced in the government intervention, which had an immediate symbolic impact. As Sen. Maria Cantwell (D-Wash.) said Wednesday: “You want to ignore millions of Native Americans? Well, it’s pretty hard to say the federal government doesn’t know what they’re talking about when they say it’s disparaging.”
For the Washington Redskins, there may be years of appeals, and pending a final decision, the trademarks will remain enforceable. But if the ruling stands, it will threaten billions of dollars in merchandizing and sponsorship profits for NFL teams, which share revenue. Redskins owner Dan Snyder would have to yield or slowly succumb to death by a thousand infringement paper cuts.
The patent office opinion also seems to leave the future of trademarks largely dependent on whether groups file challenges. Currently trademarked slogans such as “Uppity Negro” and “You Can’t Make A Housewife Out Of A Whore” could lose their protections, despite the social and political meaning they hold for their creators. We could see organizations struggle to recast themselves so they are less likely to attract the ire of litigious groups — the way Carthage College changed its sports teams’ nickname from Redmen to Red Men and the California State University at Stanislaus Warriors dropped their Native American mascot and logo in favor of the Roman warrior Titus. It appears Fighting Romans are not offensive, but Fighting Sioux are.
As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups. The Internal Revenue Service offers another good example. Like the patent office, it was created for a relatively narrow function: tax collection. Yet the agency also determines which groups don’t have to pay taxes. Historically, the IRS adopted a neutral rule that avoided not-for-profit determinations based on the content of organizations’ beliefs and practices. Then, in 1970, came the Bob Jones University case. The IRS withdrew the tax-exempt status from the religious institution because of its rule against interracial dating on campus. The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving “contrary to established public policy” — whatever that public policy may be. Bob Jones had to choose between financial ruin and conforming its religious practices. It did the latter.
There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes. Consider the Federal Election Commission’s claim of authority to sit in judgment of whether a film is a prohibited “electioneering communication.” While the anti-George W. Bush film “Fahrenheit 9/11” was not treated as such in 2004, the anti-Clinton “Hillary: The Movie” was barred by the FEC in 2008. The agency appeared Caesar-like in its approval and disapproval — authority that was curtailed in 2010 by the Supreme Court’s decision in Citizens United.
Even water has become a vehicle for federal agency overreach. Recently, the Obama administration took punitive agency action against Washington state and Colorado for legalizing marijuana possession and sales. While the administration said it would not enforce criminal drug laws against marijuana growers — gaining points among the increasing number of citizens who support legalization and the right of states to pass such laws — it used a little-known agency, the U.S. Bureau of Reclamation, to cut off water to those farms. The Bureau of Reclamation was created as a neutral supplier of water and a manager of water projects out West, not an agency that would open or close a valve to punish noncompliant states.
When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” As I’ve written before in these pages, agencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches. Insulated from participatory politics and accountability, these agencies can shape political and social decision-making. To paraphrase Clausewitz, water, taxes and even trademarks appear to have become the continuation of politics by other means.
What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and has testified in Congress about the shift of power in the federal system to federal agencies.
WASHINGTON POST SUNDAY June 22, 2014
WHERE TO GO WITH BOWE? A BERGDAHL TRIAL COULD RAISE SOME FAMILIAR DEFENSES
Below is my column yesterday in the Chicago Tribune. It remains unclear whether Bowe Bergdahl will be charged. However, the allegations are mounting over his disappearance from his base. This column explores some interesting possible defenses and their historical context. Bergdahl returned this week to the United States, a move that will likely magnify these questions for the Administration.
The controversy over the trade of five Taliban prisoners for Army Sgt. Bowe Bergdahl continues to grow with allegations that President Barack Obama violated federal law and paid too high a price for the release. However, the biggest problem for the White House may not be the Taliban (including one released prisoner who said he wants to immediately rejoin the fight against America) but what to do with Bergdahl now that we have him back. Bergdahl is facing allegations that he not only deserted in June 2009, but may have collaborated with the enemy. If he faces a military trial, the White House could be looking at years of legal wrangling and a defense that might resemble another notorious case that began 40 years ago — that of Patty Hearst.
The facts of Bergdahl’s disappearance remain sketchy. While he previously stated that he had lagged behind a patrol and was captured, the Pentagon concluded that Bergdahl walked away from this base voluntarily. If true, that would make him vulnerable to a charge of being absent without leave. However, the allegations are far more serious. While the White House has said that Bergdahl tried to escape from his captors, various journalists are reporting that Bergdahl may have sought contact with the Taliban and may have been a collaborator, including times when he carried a weapon. One particularly serious allegation is that Bergdahl taught the Taliban how to convert a cellphone into the base of an improvised explosive device. Those charges would expose Bergdahl to charges of desertion and even treason.
What is known is that shortly before his release, Bergdahl sent his parents a uniform as well as messages that indicated his dissatisfaction with our country and the U.S. operations in Afghanistan. In one email, Bergdahl reportedly wrote his parents that “life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong. … I am ashamed to even be (A)merican.” He described his commander as a “conceited old fool” and his comrades as “the army of liars, backstabbers, fools and bullies.”
To make matters worse (if that is possible), members of Bergdahl’s unit insist that soldiers died looking for him — though that claim remains under investigation.
A Bergdahl trial would only magnify the political costs for the Obama administration. The best political option for the White House would be to have Bergdahl “separated” from the service for mental and physical health problems. A trial would draw obvious comparisons to a prior case like that of Marine Pfc. Robert Garwood, convicted of aiding the enemy in the Vietnam War. In Garwood’s case, there was no allegation that he left voluntarily or sought out the enemy. However, while prisoners were released in 1973, Garwood did not return to the United States until 1979 and faced allegations of collaboration, including working for the Vietnamese as a mechanic and other roles in unguarded facilities.
However, the strongest parallel may be to the trial of Hearst, heiress to the Hearst newspaper fortune. After being kidnapped in 1974 by the Symbionese Liberation Army, Hearst appeared in a tape in 1974 announcing that she had joined the SLA and assumed the name “Tania” — after the nom de guerre of Haydee Tamara Bunke Bider, a communist guerrilla and one of Che Guevara’s comrade in arms. Hearst was captured on film 12 days later, holding a M1 carbine while robbing a bank in San Francisco.
After her arrest, Hearst refused to give evidence against the SLA members but insisted that she was brainwashed. The defense fell short and Hearst was convicted of bank robbery in 1976 and sentenced to 35 years of imprisonment. President Jimmy Carter later commuted her sentence to two years, and she was eventually granted a full pardon by President Bill Clinton in 2001.
The military laws and culture make it difficult to advance a Stockholm syndrome defense where a captive identifies or bonds with his captors. The rules governing prisoners of war require them to maintain discipline and to continue to resist the enemy while in captivity. POWs are forbidden from aiding the enemy. What looks like Stockholm syndrome to the public looks like collaboration to the military.
That leaves a mental illness defense or a type of post-traumatic stress disorder defense. Bergdahl reportedly was traumatized after seeing an Afghan child run over by an armored fighting vehicle. (Notably, one account also states that Bergdahl was held in a small metal cage after trying to escape.) That could be enough as a foundation for a claim of mental diminishment, particularly when combined with grueling captivity at the hands of the Taliban. However, it is the type of claim that did not work for Garwood or Hearst, and PTSD is more of a recognized medical condition than a legal defense.
No matter how this unfolds, the Bergdahl controversy is likely to get worse for the White House before the fall election. Bergdahl may prove to be everything that Republicans wanted Benghazi to be. And they do not have to do a thing.
Jonathan Turley is a law professor at George Washington University and has handled military and national security cases as criminal defense counsel.
Chicago Tribune: June 13, 2014
THE IMPERIAL PRESIDENCY
Below is my column this week in American Legion Magazine which juxtaposed my view of the Obama presidency with the opposing view of William Howell, the Sydney Stein Professor in American Politics at the University of Chicago. Notably, a ranking member of the Administration this week wrote that more executive actions are being planned by the White House. These opposing articles capture the two very different perspectives of the evolving use of executive power in our tripartite system.
When James Madison shaped a new constitutional system for the United States, he and his fellow framers had one overriding fear:
They wanted to divide power between three branches and create lines of separation that prevented the concentration of power in any single branch. The framers based their ideas on an understanding of human nature – and human weakness. They tried to create a system in which ambition would check ambition. However, they knew that citizens can be distracted or deceived into giving up their very freedom. Madison warned future generations that “if Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” The framers knew how effective fear can be to induce citizens to give up their liberties. Recent years have proven them once again prophetic in their warnings.
To this day, many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely – a Faustian bargain the framers repeatedly warned us never to accept. Benjamin Franklin said it best when he warned that “they who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Despite these warnings, many people have embraced largely unchecked presidential powers under the assurance that the rising security state will keep them safe. The shift of power to the presidency certainly did not start with President Barack Obama. To the contrary, this trend has been gaining ground for decades. But it has accelerated under Obama, who has succeeded to a degree that would have made Richard Nixon blush. Indeed, Obama may be the president Nixon always wanted to be.
I do not believe that Obama is (or wants to be) a tyrant. However, his unilateral actions are redrawing the lines of separation in our system in a way that I believe could prove destabilizing and even dangerous in the future.
While the “imperial presidency” has been discussed as a danger in our country since its founding, it is a term most associated with Nixon. Presidents such as Andrew Jackson and Franklin Delano Roosevelt showed similar tendencies. Often, war is cited as the reason for extraconstitutional action, such as Abraham Lincoln’s suspension of habeas corpus. “Imperial presidency” is not a term that reflects an actual royal ambition or the suspension of term limits. Rather, it refers to a model of the presidency that allows for a wide array of unilateral actions and largely unchecked powers.
What is fascinating is that Nixon was largely unsuccessful in accomplishing this dream of a presidency with robust and largely unlimited powers. Indeed, many of the unchecked powers claimed by Nixon became the basis for articles in his impeachment and led to his resignation on Aug. 9, 1974.
Four decades ago, Nixon was halted in his determined effort to create an imperial presidency with unilateral powers and privileges. But in 2013, Obama wields those very same powers openly and without serious opposition.
–Surveillance. Nixon’s use of warrantless surveillance was cited as one of his greatest abuses and led to the creation of the special Foreign Intelligence Surveillance Court. Obama, however, has expanded warrantless surveillance programs to a degree that dwarfs anything Nixon imagined, including initiating a program that captured communications of virtually every U.S. citizen.
–War. Nixon’s impeachment included the charge that he evaded Congress’ sole authority to declare war by invading Cambodia. Obama went even further in the Libyan war, declaring that he alone defines what is a “war” for the purposes of triggering the constitutional provisions on declarations of Congress. That position effectively converts the entire provision in Article I, Section 8 of the Constitution (“Congress shall have power to … declare War”) into a discretionary power of the president.
–Kill lists. Nixon ordered a burglary to find evidence to use against Daniel Ellsberg, who leaked the Pentagon Papers, and was accused of a secret plot to have the White House “plumbers” “incapacitate” him in a physical attack. People were outraged. Yet Obama has asserted the right to kill any U.S. citizen without a charge, let alone conviction, based on his sole authority. Internal documents state that he has a right to kill a citizen even when he lacks “clear evidence (of) a specific attack” being planned.
–Reporters/whistle-blowers. Nixon was known for his attacks on whistleblowers, using the Espionage Act of 1917 to bring a rare criminal case against Ellsberg. He was vilified for this abuse of the law, but Obama has brought twice as many such prosecutions as all prior presidents combined. Nixon was accused of putting a few reporters under surveillance. The Obama administration has admitted to putting Associated Press reporters, as well as a Fox reporter, under surveillance.
–Obstruction of Congress. Nixon was cited for various efforts to obstruct or mislead congressional investigators. The Obama administration has repeatedly refused to give evidence sought by oversight committees in a variety of scandals. In one case, Congress voted to move forward with criminal contempt charges against Attorney General Eric Holder, which Holder’s own Justice Department blocked. In another case, Director of National Intelligence James Clapper lied before Congress on the surveillance programs, and later said that he offered the least untruthful statement he could think of. The Obama administration, however, refuses to investigate Clapper for perjury, let alone fire him. Recently, the administration was accused of searching Senate computers in an investigation of the CIA and trying to intimidate congressional investigators.
These examples are simply those connected with the growing internal security state. Other characteristics of an imperial presidency are equally evident, particularly in the repeated circumvention of Congress in ordering unilateral changes to federal law or suspending federal laws.
While many hail Obama for not taking “no” for an answer from Congress in areas such as health care and immigration reform, they may rue the day another president uses the same powers to negate environmental or anti-discrimination laws.
It has long been said that one of the scariest statements is, “Trust us, we’re from the government.” The deep American distrust for such a claim was shared by the framers, who rejected a government based on assurances of the best intentions. Madison famously warned, “If men were angels, no government would be necessary.” In other words, we have a government that refuses to accept promises of good behavior or motivations from politicians.
Time and time again, Obama has returned to the theme that there is nothing to worry about in surveillance or wars or even the killing of citizens because he promises to use the powers wisely. The administration has been particularly adept in creating internal “committees” to suggest some form of due process before citizens are vaporized or other unchecked powers are used by the president. Since the president creates these committees and appoints their members out of his own authority, he can simply ignore their recommendations. It is little more than the promise of best intentions – the very promise the framers warned us never to accept from our government.
In the end, we have accepted the lure of personality over principle in allowing the expansion of these powers. Obama will not be our last president, but these powers are unlikely to be voluntarily surrendered by his successors. There is a radical change occurring in our system, and we may be at a critical constitutional tipping point in the establishment of an imperial presidency in the coming years.
The danger of this concentration of authority is made more acute by the failure of federal courts to perform their vital function in confining the branches to their constitutional spaces. Federal courts in the past few decades have maintained an increasing position of avoidance in separation-of-powers cases, leaving it to the political branches to fight over turf. Courts now routinely block litigants, including members of Congress, from even being heard on constitutional violations. Years ago, I represented Democratic and Republican members (both conservative and liberal) challenging the Libyan war. They were denied even a hearing.
Congress has proved equally passive, if not inert. Democrats have remained silent in the face of policies that challenge core values of privacy and war, as did Republicans under George W. Bush. That interbranch tension envisioned by Madison has gradually dissipated. Individual ambition of politicians has replaced institutional ambition, leaving many to curry favor with the White House as legislative powers are drained away by an increasingly powerful president. As that power increases, there is more pressure on politicians to yield in new areas.
This downward spiral may have reached its ultimate expression this year. Framers such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.
Obama has made it clear that he simply will not take “no” for an answer. When Congress recently refused to pass the DREAM Act to change immigration laws to protect potentially millions of deportable individuals, he simply ordered the very same measures on his own authority. The same unilateral measures were ordered in health care, drug enforcement, online gambling and other areas. The failure of Congress to consent to executive demands was followed by the same measures being ordered on the basis of Obama’s inherent authority. Under this approach, Congress is being reduced to an almost decorative element in governance – free to approve but not to block presidential demands.
While Congress clearly retains powers, its members are increasingly finding that discretionary funds and powers blunt efforts to change government programs. Even Congress’ power of the purse has become discretionary with the president. When Congress resisted demands of the president on health care, Obama simply shifted $454 million in funds from the purpose mandated by Congress to his own purpose. When he decided not to consult with Congress on the Libyan war, he simply spent roughly a billion dollars on a war neither declared nor funded by Congress.
Such circumvention – and the new presidential powers – create a perfect storm within the Madisonian system. It raises the very prospect the framers thought they blocked through the separation of powers: a president who can effectively rule alone.
We often refer to ourselves as the “land of the free,” as if that status were self-evident. We rarely ask ourselves what those freedoms are and how they have been abridged. Our self-image can border on self-delusion when we take stock of the status of many rights.
We have learned of a massive surveillance program in which every citizen has had telephonic and email data captured by the government. Every citizen has been warned that the president may kill them on his own authority without a charge, let alone a conviction. We have a secret court that approves thousands of secret searches every year and a federal court system that increasingly allows the use of secret evidence. We have a new Obama-era law, the National Defense Authorization Act, that allows for the indefinite detention of people by the government and, while exempted from mandatory detention, allows for such detention of citizens. We still have a detention center at Guantanamo Bay, established by George W. Bush, just over our border to avoid the jurisdiction of U.S. courts. It allows the president to choose who gets a real trial, who gets a legally dubious military tribunal, or who gets no trial at all. While seeking to close the facility, Obama has continued to assert the right to send people to military tribunals on his sole authority – thereby stripping them of core legal protections.
While the erosion of freedoms in the United States has occurred with nary a whimper of regret in this country, it has not gone unnoticed abroad. The United States is now widely viewed as a hypocrite on the subject of human rights and civil liberties. This year, our nation fell to 46th in the world on press freedoms (behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland, Czechoslovakia, Ghana, South Africa and El Salvador), according to a recent study by Reporters Without Borders. Another study this year counts the United States as an “enemy of Internet freedom” with countries such as Iran, China and North Korea.
When the full mosaic of new governmental powers is considered, and the full array of rights curtailed in the United States, we are left with a disturbing question of self-identity. We more often seem to define ourselves by what we are not than by what we are.
In the summer of 1787, a telling moment occurred after a crowd gathered around Independence Hall to learn what type of government had been created for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Elizabeth Powel could wait no longer. Franklin was one of the best known of the framers working on the new U.S. Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any framer: “A republic, Madam, if you can keep it.”
It may be that it is not the presidency that has changed. We have changed. As a nation, we seem to have grown almost bored with rights like privacy and due process. We have been passive and pedestrian in watching the rise of an uber-presidency. We no longer view ourselves as directing our government, but as merely bystanders watching matters outside our control.
Worse yet, we seem to have lost not just our identity but even our interest in governance. It was a republic when Franklin was stopped by Powel.
I am not sure that most citizens today would even have stopped him to ask. “Democracy … soon wastes, exhausts and murders itself,” John Adams once said. “There was never a democracy yet that did not commit suicide.”
What is truly sad is that if one of the greatest republics in history did die, it is not clear if anyone would even notice its passing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and frequently appears before Congress as a witness on constitutional issues. He is the host of http://www.jonathanturley.org, an award-winning legal and policy blog.
May 21, 2014 American Legion Magazine
Braulio Castillo seemed exactly what the government was looking for. He was CEO of a Virginia company who was listed as a service-disabled veteran. That status allowed Castillo to secure $500 million in government contracts under special rules. Castillo described his terrible disability as just one of the “crosses that I bear due to my service to our great country.” Others now describe it as a shameless scam.
Castillo, 43, was a U.S. Military Academy Preparatory School student when he hurt himself playing football. Decades later, he filed for service-disabled veteran status with the Department of Veterans Affairs. Bizarrely, the VA granted it, even though Castillo went on to play football for the University of San Diego and never served in a military unit. With this status, he was awarded a half-a-billion dollars in contracts despite little experience.
Castillo is certainly not the sole measure of the programs that give preferential treatment in government contracting based on race, sex, geography, business size and disabled status. However, his case shines a light on the system’s darker side.
For years, contractors have complained that companies game the system by adding front owners with the right status. Such was the case of the Virginia company GTSI, which won contracts for IT and integration services in part because one of its partners was considered a “small business.” One e-mail, cited as from a GTSI vice president, revealed that the subcontractor was “very open to the concept of GTSI doing ALL the work” and just taking the money as a front.
The main reason for concern is not fraud, however. It is efficiency. The set-asides downgrade competence, performance and price in government contracts to focus competition for public money on the special status of corporate owners. In writing the laws governing government contracts, Congress simply threw in elements unconnected to the merit of government contracts while demanding reports on the percentage of contracts benefiting these groups.
For example, in 1994, Congress mandated that at least 5% of contracts go to businesses majority-owned by women. Today, roughly 3% of contracts are set aside based on the gender of the owner. Similar set-asides and preferences are accorded by race and service-related injuries. At times, the world of government contracting preferences has become so bizarre that set-aside groups have fought about preferences within preferences. In one case, 25% of the set-aside for small businesses were further set aside for minority-owned or women-owned businesses, but minority businesses objected that woman end up getting too much of the contracting pie.
There is no question about the laudable goals of these programs in expanding minority and women-owned business. Rather, it is the means used to achieve those goals that is the problem. Like special deals in the tax code, it is easy to create such preferences for particular groups without the need to appropriate any money directly to benefit a group. Laws and regulations stretching across dozens of federal departments and agencies have the special set-asides or preferences for “veteran-owned small business, HUBZone small business, or women-owned small business.” Agencies further mandate special treatment for “African Americans, Hispanic Americans, Native Americans, (American Indians, Eskimos, Aleuts, or Native Hawaiians); Asian Pacific Americans (persons with origins from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, U.S. Trust Territory of the Pacific Islands, Northern Mariana Islands, Laos, Cambodia, or Taiwan, Asian Indian Americans; and members of other groups designated from time to time.”
Few are prepared to question the wisdom of such an approach out of fear of being called misogynistic, anti-veteran or anti-Samoan. Agencies are left dealing with a tangle of detailed rules while the public expects them to be quickly and efficiently carrying out government business. It is a recipe for inefficient government, a frustrated public and little accountability.
As for Castillo, his contracting days are over. Not because of any reform, mind you. Last month, police charged him in the death of his wife in his Northern Virginia mansion. Despite his classification as 30% disabled, police say he was able to use the other 70% to beat his wife to death and then hoist her to the ceiling to fake a suicide.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
May 7, 2014
THE SUPREME COURT UPHOLDS MICHIGAN’S COLOR BLIND ADMISSIONS AMENDMENT
Below is yesterday’s column on CNN.com on the ruling in the Michigan affirmative action case, which we discussed earlier this week. I was asked to write a response to the decision and jumped at the opportunity to feature a couple of the GW “justices” from my Constitution and the Supreme Court seminar. The class meets in the Spring Term and reviews one case a week from the docket of the Supreme Court for that term. We read and discuss a selection of briefs filed in each case and the lower court opinion. The “justices” then rule on the merits, explaining their own take on the underlying legal issues and the role of the Court in the controversy. We then take a separate vote to predict what that “other” Supreme Court will do. Over the years, I have found that the students are remarkably accurate in their predictions, far more accurate than most commentators. Indeed, I have often found the opinions of the GW Court to be superior to its more famous counterpart on Capitol Hill. At the end of the term, each student writes a majority opinion and either a dissenting opinion or concurring opinion. They can choose any case from the current term. Of course, public commentary following the release of a decision might raise some questions of judicial ethics, we can at least claim to have been more circumspect that some of the members of that “other” Court. So here is the column from CNN and thank you Justices Yvette Butler and Vincent Cirilli.
CNN Editor’s note: With the U.S. Supreme Court’s ruling this week on Michigan’s affirmative action policy in college admissions, CNN asked George Washington Law School professor Jonathan Turley to have two of his law students, Yvette Butler and Vincent C. Cirilli, debate the ruling. The opinions expressed in this commentary are solely those of the authors.
By Jonathan Turley
In the aftermath of the decision in Schuette v. Coalition to Defend Affirmative Action, there is one thing (and perhaps only one thing) that most everyone agrees upon: It is a game changer.
After decades of conflicting and increasingly convoluted decisions on the use of race as a criterion for university admissions, the Supreme Court ruled Tuesday that the citizens of Michigan could constitutionally ban the use of race and other criteria in the selection of students.
For some, the court affirmed the right to establish a colorblind selection process. For others, the court engaged in an act of willful blindness to the racial realities of society.
The court has been struggling in this area for decades. In 1977, in Regents of the University of California v. Bakke, the court allowed only a limited use of race for the purpose of achieving “diversity” in classes.
The Medical School at the University of California at Davis set aside 16 of the 100 seats for minorities. The court ruled it unconstitutional but was deeply divided on why — a harbinger for the line of cases that would follow Bakke.
The court spent nearly the next 40 years spinning on the ice of affirmative action, unable to get traction or a clear direction.
The court’s split decision in 2003 is illustrative. It was presented with two cases involving the use of race as a criterion in the undergraduate and the law school admissions processes at University of Michigan.
In one case, Gratz v. Bollinger, the court voted 6-3 that the university violated equal protection in the selection of students based on race and other criteria. It then ruled 5-4, in Grutter v. Bollinger, to uphold race criteria in the admissions process for Michigan Law School.
However, Associate Justice Sandra Day O’Connor stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
O’Connor’s statement was ridiculed by many (including some on the court), but seemed to capture the fluidity of the court’s position on the use of race.
In 2013, the court again seemed to produce a nuanced and uncertain decision in Fisher v. University of Texas at Austin, where the court rejected a lower court decision upholding the use of race in admissions at the University of Texas. However, it did not prohibit the use of race but rather sent back the case for the imposition of a more demanding test of “strict scrutiny.”
These cases offered little hope that a “bright line” could be reached to bring resolution of the issue and meant that the court would continue to referee such matters. That line, however, may now have been reached in Schuette.
Michigan voters responded to the divided results in the Grutter and Gratz cases to bring their own clarity to the area. They passed a constitutional amendment that required an entirely colorblind process for selection at state schools (as well as barring schools from giving an advantage to some students based on other immutable characteristics like gender). By a vote of 6-2, the court ruled this week that citizens could do precisely that.
In so ruling, the court for the first time created an avenue that could end this longstanding controversy by vote of citizens. Seven states have already passed such rules, and this decision is likely to encourage others to follow.
In my seminar on the Constitution and the Supreme Court, my students and I debate leading cases each term and voted both on the merits and on our prediction as to the outcome in that “other” court.
So, in our recent vote, the GW Supreme Court voted overwhelmingly, 11-4, to reverse the Sixth Circuit and allow Michigan voters to make such a decision. The class also predicted the result in the case — again by an 11-4 vote.
Here are two of our “GW justices” who viewed the case in manifestly different ways:
AGAINST: Ruling reflects ‘sad history’ of racial hurdles
By Yvette Butler
The importance of the court’s decision is amplified by our sad history of placing hurdles to bar minorities from meaningful participation in the political process. Race-conscious policies, by the court’s own admission, are highly controversial and should be confronted in the political process through healthy debate. However, the debate means little if no real action can be taken to implement what was decided through that debate.
The Michigan Constitution already contained a process for deciding university admissions policies. Michigan residents had ample voice through elections to choose members of a board that were an integral part of this process.
If the board members were not advancing the will of the people, residents could have made their voices heard through elections. This switch from a highly accessible and accountable board to a state constitutional amendment is an impermissible restructuring of the political process which will only serve to cripple the effectiveness of public debate and severely disadvantage the minority. By adopting a change on a state constitutional level, the issue is further removed from the hands of the people.
Even assuming that a healthy debate will take place, the decision places a significant hurdle in the way of any concrete action. This decision goes against clearly established Supreme Court precedent that it is unconstitutional to inhibit meaningful access to the political process for minorities. The Supreme Court plays a special role in our system. It must uphold constitutional rights, especially in the face of majority rule where that majority seeks to take a voice away from the minority.
FOR: Court should not undo the will of the people
By Vincent C. Cirilli
The political process yields favorable and unfavorable results. As long as the government does not interfere with the right to participate in the process, and as long as the results of that process are constitutional, the courts cannot take power from voters and undo the will of the people. The Supreme Court made clear that Schuette was not about the constitutional validity of affirmative action programs.
Instead, the case was about whether Michigan’s constitutional amendment barring affirmative action interfered with the right to participate in the political process. The court correctly ruled that the process functioned properly.
What did that process entail? Michigan’s Proposal 2, a statewide referendum, was approved by 58% of Michigan voters. The amendment the voters passed does not restrict speech, deny voting rights, or impose majoritarian barriers designed to prevent the minority from achieving its goals.
In other words, the amendment does not interfere with the political process. Voters are not silenced, the issues are not censored, and the debate surrounding affirmative action is not over.
If the role of the court is to perfect democracy, then the court fulfilled its role in not overturning Michigan’s amendment. A ruling to the contrary would undermine democracy by removing this debate from the public sphere and leaving its resolution in the hands of nine unelected judges.
Some may disagree with Michigan’s amendment. That is to be expected and encouraged. The political process is always ongoing and perhaps the issue will be revisited. In the meantime, the debate will continue, ideas will be shared, and the political process will march forward.
CNN.com (April 25, 2014)
Freedom of the press needed more than ever
Fifty years ago this week, the Supreme Court handed down one of its most celebrated defenses of the free press in The New York Times v. Sullivan. In its unanimous decision, the court referred to growing threats against the news media and the need to limit liability to allow them to perform their unique constitutional function. The threats in 1964, however, now seem almost quaint in comparison with those faced in 2014.
Land of the sorta, kinda free
In 1964, the United States was viewed as the world’s leading protector of press freedom. Now, America is viewed as a growing menace to press freedom. In this year’s World Press Freedom Index by the respected Reporters Without Borders, the U.S. ranked 46th in the world, behind Lithuania, Latvia, Romania, Czech Republic, Ghana, South Africa and El Salvador, among others.
New York Times v. Sullivan dealt with a defamation lawsuit by Montgomery, Ala., public safety commissioner L.B. Sullivan, who objected to errors in an ad concerning civil rights abuses. He won a $500,000 award under Alabama law.
Freezing out the most important journalism
The Supreme Court saw civil liability as creating a chilling effect on reporters, resulting in self-censorship that is just as stifling as direct censorship. Wiping out the award, the justices sought to give the free press “breathing space.” In his concurrence, Justice Hugo Black warned that “state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.”
“The imminence and enormity of (the) threat” to press freedom the court warned of in 1964 pales in comparison with today’s threats.
Criminal liability and surveillance
While courts were highly sympathetic to the news media in reporting on civil rights, that sympathy evaporated when the subject went from figures such as Alabama segregationist Bull Connor to Osama bin Laden. Both the Bush and Obama administrations challenged the distinction between journalists and other people who receive classified information. The Obama administration placed Associated Press reporters under surveillance and, in 2010, named Fox News correspondent James Rosen “an aider, abettor and/or co-conspirator” for his work with a whistle-blower.
If that seems perfectly Nixonian, it is actually perfectly Obamian. While President Nixon was denounced for his use of the Espionage Act of 1917, Obama has brought twice the number of such prosecutions of all prior presidents under the act. Julian Assange, the publisher of the WikiLeaks material, is now hiding in an embassy in London, and the administration is seeking an absurd 105-year sentence against freelance journalist Barrett Brown for linking to hacked e-mails and other leaked information.
Freedom of the press vs. freedom of speech
At one time, virtually every local news organization had investigative units that went under cover to expose abuses or corruption. Then, in 1999, the federal appellate court in Virginia ruled against ABC in an exposé on unsanitary conditions at a Food Lion store. While reducing the damages, it held that the news media was not protected any more than ordinary citizens in committing fraud or trespass.
Reporters are also still facing prison for protecting confidentiality. Recently, the incarceration of reporters led to renewed demands for a federal shield law for reporters protecting confidential sources. However, Congress used the watered-down law to actually exclude some classes of the growing “new media,” such as bloggers, from any protection.
Since 1964, courts have proved generally hostile to claims of journalistic principles and rights. Greater protections are now found under freedom of speech as opposed to the freedom of the press — losing the unique function (and protections) accorded journalists. New York Times v. Sullivan affirmed a distinct role — and the need for distinct protections — for journalists. Federal courts have steadily eroded that distinction.
Scrutiny works when Washington doesn’t
Ironically, we are living through one of the most inspiring periods for journalism. Neither the courts nor Congress revealed abuses ranging from torture programs to warrantless surveillance to secret prisons. The only moving part fully functioning in this system is the free press.
The question is whether in another 50 years, citizens will even recognize the type of journalism protected by New York Times v. Sullivan.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
March 13, 2014
OBAMA’S POWER GRAB
Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.
Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.
The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.
This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.
James Madison fashioned a government of three bodies locked in a synchronous orbit by their countervailing powers. The system of separation of powers was not created to protect the authority of each branch for its own sake. Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.
A glance at recent unilateral moves by Obama illustrates how executive power has expanded, largely at the cost of legislative power.
The suspension of a portion of the ACA is only the latest such action related to the healthcare law:
• The heart of the healthcare law was a set of minimum requirements for insurance plans. After Obama was embarrassed by the cancellations of millions of nonconforming plans (when he had said no one would lose a plan they had and liked), he created first one temporary exemption and then, last week, another, adding two years to the compliance deadline set by law.
• On his own authority, Obama also chose other dates for compliance with the employer mandate.
• Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens. Obama ordered that the same subsidies would continue, in defiance of the law.
The president has shown similar unilateral inclinations in other areas:
• He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation. Congress refused to pass the so-called Dream Act, but Obama proceeded to order agencies to effectively guarantee the very same changes.
• The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants who would be subject to what Atty. Gen. Eric H. Holder Jr. called draconian mandatory minimum sentences. The new rule effectively negates sentencing provisions set by Congress.
• Obama opposed the No Child Left Behind Act and in effect nullified it through waivers of his own making.
• For years, the Wire Act was interpreted to mean that Internet gambling was prohibited, which some states and businesses opposed. The Obama administration declared the act would now be treated as having the inverse meaning.
Some of these changes are admittedly close questions, and federal agencies are given considerable discretion in crafting regulations.
For example, the Obama administration repeatedly asked Congress to limit greenhouse gases but was rejected. The administration proceeded to create its own national regulation of the gases along the very lines debated and rejected in Congress. Yet the new regulations are based on a broadly written Clean Air Act and were upheld in part by the Supreme Court. However, this major new regulatory scheme was still initiated without any approval of Congress.
Not even the power of the purse, which belongs exclusively to Congress, is sufficient to deter the White House. The Obama administration took $454 million from a fund established to help prevent illness and put the money instead toward paying for the federal health insurance exchange. Even leading Democratic members denounced this as “a violation of both the letter and spirit of this landmark law.”
I happen to agree with many of the president’s policies. However, in our system, it is often more important how we do something than what we do. Priorities and policies and presidents change. Democrats will rue the day of their acquiescence to this shift of power when a future president negates an environmental law, or an anti-discrimination law, or tax laws.
To be clear, President Obama is not a dictator, but there is a danger in his aggregation of executive power.
Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president. The branches are stuck with each other in a system of shared powers, for better or worse. They may deadlock or even despise one another. The founders clearly foresaw such periods. They lived in such a period.
Whatever problems we face today in politics, they are of our own making. They should not be used to take from future generations a system that has safeguarded our freedoms for more than 200 years.
Jonathan Turley, a professor of law at George Washington University, recently testified in Congress on the growing violations of the separation of powers.
Los Angeles Times (Sunday) March 9, 2014
AN INCONVENIENT SYMBOL
On Cinco de Mayo in 2010, students who came to Live Oak High School outside San Jose were rounded up by teachers for engaging in offensive speech. The speech? They had American flags on their T-shirts, something the school viewed as insulting to Hispanics. Administrators insisted that only the Mexican flag could be shown on campus that day.
Last week, the school’s actions were unanimously upheld by the federal appellate court in California — a ruling that would allow flags and other patriotic symbols to be banned like profanity or hate speech.
In reality, the ruling is not a sign of contempt for the flag but a sign of contempt for the rights of students. The fact that this speech concerns the flag itself (the very symbol of civil liberties) captures how far the courts have gone in abandoning core First Amendment rights for students.
The case started because Live Oak High was concerned about prior disruptions and saw the American flag as “incendiary” and disrespectful. Accordingly, Assistant Principal Miguel Rodriguez ordered students to change their shirts or turn them inside out to hide the flag. Those who did not comply were sent home. Last Thursday, the federal appellate court in California unanimously upheld the school’s actions. Judge M. Margaret McKeown of the Ninth Circuit ruled, “Our role is not to second-guess the decision to have a Cinco de Mayo celebration or the precautions put in place to avoid violence.” What they did is second-guess the First Amendment and the precautions put in place to protect it.
What is most ironic is that the Ninth Circuit decision was handed down days from the anniversary of the 1969 decision in Tinker v. Des Moines Independent Community School District. In Tinker, the court supported the free speech rights of students who were wearing black armbands in protest of the Vietnam War, a highly divisive issue that had resulted in violent clashes around the country. Then, the court insisted that students did not “shed their constitutional rights … at the schoolhouse gate.”
Since Tinker, however, the federal courts have not only stripped students of their free speech rights at the schoolhouse gate, they also have done so at their bedroom doors. Federal courts have upheld a series of cases where school officials have punished students for statements that they make outside school on social media. The current members of the Supreme Court have fueled this rollback in their own controversial decisions.
What is most disturbing about last week’s decision is that the court entirely misses the distinction between speech and conduct. When presented with threats of violence, the school should punish those who engage in harassing or violent acts. Indeed, the court described an earlier confrontation when some students raised an American flag on Cinco de Mayo and “one Mexican student shouted ‘f*** them white boys. … Let’s f*** them up.'” One would have thought that those who made threats would face action from the school administration. Removing any display of the flag in the face of violence is akin to removing gay students to avoid harassment or girls to avoid sexual assaults.
Our high schools should be training future citizens to live within a pluralistic society. Instead, Live Oak High is teaching students that it is the speech, not those who threaten the speakers, that is the problem. Citizens shaped in such an environment are likely to view speech as a discretionary privilege allowed by our government rather than an individual right guaranteed in our Constitution.
Ironically, the flag is the very symbol of a nation of differing faiths, cultures and races bound by liberty. Perhaps the school was right: If you are going to deny free speech, it is the last thing you want to see.
Jonathan Turley, a George Washington University law professor, is a member of USA TODAY’s Board of Contributors.
March 3, 2014
SCALIA’S ORIGINALIST THEORY OF PIZZA
The appearance of Associate Justice Antonin Scalia this week at the Union Club in Chicago was greeted with the usual enthusiasm and expectations. Not only is Scalia a former University of Chicago professor, but also he never disappoints in making headline-grabbing comments. Indeed, through the years, I have been a critic of Scalia for his public comments on issues pending before the Court and his courting of a type of constituency of conservative groups and fans. However, I have always tempered my criticism with an acknowledgment that Scalia is one of the few consistent jurists on the Court who follows a clear judicial philosophy. No more. Scalia has finally crossed the line with comments made at the Union Club. In addition to his usual controversial commentary about the interaction of religion and the government, Scalia took time to declare that Chicago-style pizza is not real pizza but little more than a “tomato pie.” It was a statement that was not just injudicious but downright sacrilegious. It is time for Scalia to go.
Scalia appears to view that pathetic tomato dipped wafer known as New York pizza as the only true version of circular cuisine. He appears to apply a type of originalism to the culinary arts that parallels his constitutional interpretations. Pizza in his view was originally thin and flat. Just as privacy in the modern sense did not exist at the founding, apparently neither did deep-pan. (Indeed, since modern pizza is often traced to Naples in the nineteenth century, Scalia may have to declare that pizza like privacy does not legally exist since it was not around at the founding. Of course, one could argue that the “penumbra” of pizza was around at the founding in the form of flatbread dishes like those common with the Romans, Greeks, Turks, and other cultures).
As with his judicial philosophy, Scalia is far too narrow in both his assumptions and the scope of what he considers acceptable interpretive license for cooks. (By the way, New Yorkers often call pizza “pies” which they fold like Wonder bread. By a strict definitional approach, all forms of pizza could be defined as pies and vice versa since both involve dough casings that with savory ingredients).
Now, make no mistake, I am half Italian and a native Chicagoan and I am fully aware of the traditional thin crust pizza found in Italy. However, pizza is a category of food, not a single exclusive term for one style. For example, Gelato is a wonderful ice cream that truly makes all other ice cream pale in comparison but it is not the only ice cream. Ice cream is a category of frozen dessert usually made from dairy products. Likewise, pasta comes in a variety of forms. One would not call fried dough the only “true” pasta, even though it was first referenced in this form in the First Century.
Scalia shows the same approach to contemporary culinary questions as he does contemporary constitutional questions. Like marriage, for example, pizza can have more inclusive meanings. Two men or two women can marry in a growing number of states and most people have moved well beyond the one topping rule for pizza. When it comes to marriage and pizza, Mr. Scalia, it is about love. Deep love.
Scalia’s views may appeal to many of his supporters who still reject the concept of evolution. However, history and the stratigraphic dough record is against them. Chicago pizza is the highest form of evolution of pizza — a majestic combination of cheese, sauce, and dough that resulted from years of experimentation and consumer demand. Like the evolution of the horse from the tiny Eohippus in the early Eocene period, pizza evolved with stronger crust and brilliant engineering advances. It is to New York pizza what the John Hancock is to a lean-to. It is what Arnold Swartzenegger is to Don Knotts.
Now, I believe that pizza like free speech has broadened with time in the scope of its protections, including protections given the Internet. I would never demand that someone “shut their pie hole” simply because they call Chicago-style pizza “tomato pie.” Scalia is entitled to his own culinary views regardless of how grotesque they may be.
Despite a brilliant career as a jurist, Scalia is a wash out as a food critic. However, there remains the question his competence to continue to serve on our highest court when he cannot apparently tell the difference between a Chicago pizza and a rhubarb pie. Years ago, I testified on the impeachment of Bill Clinton in Congress and recognized that the definition of a high crime or misdemeanor was a tough question. This is not. Declaring Chicago pizza a non-pizza should be an impeachable offense.
However, given the large New York and New Jersey delegations in Congress (and their fear of more Rubensque pizza), impeachment might not be an option. Perhaps the Chicago city council should declare Scalia persona non grata given his declaration of our signature dish as pizza non grata. He can then go eat those tomato-dipped crackers in Dallas (where his favorite football team, the Cowboys, play) with the rest of his originalist flat-bread society. This is the city of Big Shoulders and Deep pizza, Mr. Justice, and you will have to pry our greasy, cold-dead fingers off our pizza before you label it tomato pie.
Jonathan Turley is the Shapiro Professor of Public Interest law at George Washington University.
Chicago Tribune February 19, 2014
PERPETUAL WAR AND AMERICA’S MILITARY-INDUSTRIAL COMPLEX
In January 1961, US President Dwight D Eisenhower used his farewell address to warn the nation of what he viewed as one of its greatest threats: the military-industrial complex composed of military contractors and lobbyists perpetuating war.
Eisenhower warned that “an immense military establishment and a large arms industry” had emerged as a hidden force in US politics and that Americans “must not fail to comprehend its grave implications”. The speech may have been Eisenhower’s most courageous and prophetic moment. Fifty years and some later, Americans find themselves in what seems like perpetual war. No sooner do we draw down on operations in Iraq than leaders demand an intervention in Libya or Syria or Iran. While perpetual war constitutes perpetual losses for families, and ever expanding budgets, it also represents perpetual profits for a new and larger complex of business and government interests.
The new military-industrial complex is fuelled by a conveniently ambiguous and unseen enemy: the terrorist. Former President George W Bush and his aides insisted on calling counter-terrorism efforts a “war”. This concerted effort by leaders like former Vice President Dick Cheney (himself the former CEO of defence-contractor Halliburton) was not some empty rhetorical exercise. Not only would a war maximise the inherent powers of the president, but it would maximise the budgets for military and homeland agencies.
This new coalition of companies, agencies, and lobbyists dwarfs the system known by Eisenhower when he warned Americans to “guard against the acquisition of unwarranted influence… by the military-industrial complex”. Ironically, it has had some of its best days under President Barack Obama who has radically expanded drone attacks and claimed that he alone determines what a war is for the purposes of consulting Congress.
Investment in homeland security companies is expected to yield a 12 percent annual growth through 2013 – an astronomical return when compared to other parts of the tanking economy.
Good for economy?
While few politicians are willing to admit it, we don’t just endure wars we seem to need war – at least for some people. A study showed that roughly 75 percent of the fallen in these wars come from working class families. They do not need war. They pay the cost of the war. Eisenhower would likely be appalled by the size of the industrial and governmental workforce committed to war or counter-terrorism activities. Military and homeland budgets now support millions of people in an otherwise declining economy. Hundreds of billions of dollars flow each year from the public coffers to agencies and contractors who have an incentive to keep the country on a war-footing – and footing the bill for war.
Across the country, the war-based economy can be seen in an industry which includes everything from Homeland Security educational degrees to counter-terrorism consultants to private-run preferred traveller programmes for airport security gates. Recently, the “black budget” of secret intelligence programmes alone was estimated at $52.6bn for 2013. That is only the secret programmes, not the much larger intelligence and counterintelligence budgets. We now have 16 spy agencies that employ 107,035 employees. This is separate from the over one million people employed by the military and national security law enforcement agencies.
The core of this expanding complex is an axis of influence of corporations, lobbyists, and agencies that have created a massive, self-sustaining terror-based industry.
In the last eight years, trillions of dollars have flowed to military and homeland security companies. When the administration starts a war like Libya, it is a windfall for companies who are given generous contracts to produce everything from replacement missiles to ready-to-eat meals.
In the first 10 days of the Libyan war alone, the administration spent roughly $550m. That figure includes about $340m for munitions – mostly cruise missiles that must be replaced. Not only did Democratic members of Congress offer post-hoc support for the Libyan attack, but they also proposed a permanent authorisation for presidents to attack targets deemed connected to terrorism – a perpetual war on terror. The Department of Homeland Security (DHS) offers an even steadier profit margin. According to Morgan Keegan, a wealth management and capital firm, investment in homeland security companies is expected to yield a 12 percent annual growth through 2013 – an astronomical return when compared to other parts of the tanking economy.
There are thousands of lobbyists in Washington to guarantee the ever-expanding budgets for war and homeland security. One such example is former DHS Secretary Michael Chertoff who pushed the purchase of the heavily criticised (and little tested) full-body scanners used in airports. When Chertoff was giving dozens of interviews to convince the public that the machines were needed to hold back the terror threat, many people were unaware that the manufacturer of the machine is a client of the Chertoff Group, his highly profitable security consulting agency. (Those hugely expensive machines were later scrapped after Rapiscan, the manufacturer, received the windfall.)
Lobbyists maintain pressure on politicians by framing every budget in “tough on terror” versus “soft on terror” terms. They have the perfect products to pitch – products that are designed to destroy themselves and be replaced in an ever-lasting war on terror.
It is not just revolving doors that tie federal agencies to these lobbyists and companies. The war-based economy allows for military and homeland departments to be virtually untouchable. Environmental and social programmes are eliminated or curtailed by billions as war-related budgets continue to expand to meet “new threats”.
A massive counterterrorism system has been created employing tens of thousands of personnel with billions of dollars to search for domestic terrorists.
With the support of an army of lobbyists and companies, cabinet members like former DHS Secretary Janet Napolitano, are invincible in Washington. When citizens complained of watching their children groped by the TSA, Napolitano defiantly retorted that if people did not want their children groped, they should yield and use the unpopular full-body machines – the machines being sold by her predecessor, Chertoff.
It is not just the Defense and DHS departments that enjoy the war windfall. Take the Department of Justice (DOJ). A massive counterterrorism system has been created employing tens of thousands of personnel with billions of dollars to search for domestic terrorists. The problem has been a comparative shortage of actual terrorists to justify the size of this internal security system.
Accordingly, the DOJ has counted everything from simple immigration cases to credit card fraud as terror cases in a body count approach not seen since the Vietnam War. For example, the DOJ claimed to have busted a major terror-network as part of “Operation Cedar Sweep”, where Lebanese citizens were accused of sending money to terrorists. They were later forced to drop all charges against all 27 defendants as unsupportable. It turned out to be a bunch of simple head shops. Nevertheless, the new internal security system continues to grind on with expanding powers and budgets. A few years ago, the DOJ even changed the definition of terrorism to allow for an ever-widening number of cases to be considered “terror-related”.
Our economic war-dependence is matched by political war-dependence. Many members represent districts with contractors that supply homeland security needs and our on-going wars.
Even with polls showing that the majority of Americans are opposed to continuing the wars in Iraq and Afghanistan, the new military-industrial complex continues to easily muster the necessary support from both Democrats and Republicans in Congress. It is a testament to the influence of this alliance that hundreds of billions are being spent in Afghanistan and Iraq while Congress is planning to cut billions from core social programmes, including a possible rollback on Medicare due to lack of money. None of that matters. It doesn’t even matter that Afghan President Hamid Karzai has called the US the enemy and said he wishes that he had joined the Taliban. Even the documented billions stolen by government officials in Iraq and Afghanistan are treated as a mere cost of doing business.
It is what Eisenhower described as the “misplaced power” of the military-industrial complex – power that makes public opposition and even thousands of dead soldiers immaterial. War may be hell for some but it is heaven for others in a war-dependent economy.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has testified in Congress on the massive counter-terrorism budgets and bureaucracy in the United States.
A REPUBLIC IF YOU CAN KEEP IT
In the summer of 1787, a crowd gathered around Independence Hall to learn what type of government their representatives had formed for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Mrs Powel could wait no longer. Franklin was one of the best known of the “Framers” working on the new US Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any Framer. He said, “A republic, Madam, if you can keep it.”
Franklin’s words were more than a boast. They were a warning. The curious thing about a democratic system is that it contains the seeds of its own demise. Freedom is not something guaranteed by any parchment or promise. It is earned by each generation which must jealously protect it from threats, not only from outside, but from within a nation.
Some 226 years after those fateful words were uttered, the true import of Franklin’s warning has become all too real for Americans. The last 10 years has seen the rise of a security state of unprecedented size and the diminishment of privacy and core protections for citizens. Recently, a federal judge ruled that the massive NSA surveillance programme was unconstitutional. US District Court Judge Richard Leon not only said that the collection of “metadata” constitutes an unreasonable search or seizure, but that the Framers like Franklin would be “aghast” at the very thought of it.
The great irony is that the greatest loss of constitutional protections has occurred under a man who came to office promising to reform security laws and often refers to himself as a former constitutional law professor. An iconic figure for many liberals, President Barack Obama has divided the civil liberties community and expanded both the security state and his own unchecked powers. He has taken actions that would have made Richard Nixon blush – from warrantless surveillance to quashing dozens of privacy lawsuits, to claiming the right to kill any citizen, on his sole authority. He has also rolled back key international principles in expanding drone attacks and promising not to prosecute officials for torture.
Republican Senator Lindsay Graham scoffed at the notion that privacy is even relevant since only a terrorist would object to such powers.
War on privacy
With his healthcare programme mired in bureaucratic snafus and issues like gun control and immigration floundering in Congress, Obama is entering his final years in office with few clear successes. One of his most notable and ignoble successes has been in his war on privacy in the United States. Obama has not simply ordered massive surveillance of calls and emails of citizens, but he has campaigned to change people’s expectations of what privacy means. His administration advocates a surveillance-friendly form of privacy in a new fishbowl society where the government can track citizens in real time from their purchases and messages. Obama has attempted to convince citizens to trust the government and that they have nothing to fear because he will personally guarantee that these powers are not abused. At the same time, he has opposed any effort to get judicial review of these programs – beyond a laughable secret court with a history of rubber-stamping surveillance demands.
The result is a surveillance state of unprecedented size. Whistle blower Edward Snowden is now a hunted man under the protection of Russia. However, while Obama is demanding Snowden’s arrest, his Director of National Intelligence James Clapper has admitted to lying about the surveillance programmes before Congress. Yet, the Obama Administration has refused to investigate let alone prosecute him for perjury.
Snowden’s disclosures have revealed a massive surveillance system under Obama. The disclosures show that the US has intercepted communications of its closest allies like German Chancellor Andrea Merkel while intercepting calls around the world – 60 million calls in Spain alone. For US citizens, the government has created an almost total transparency in the collection of hundreds of millions of calls and emails. These calls are stored and security officials have instant access to information on the location, time and duration of communications. The Obama Administration has also put journalists under surveillance in an assault on the freedom of the press.
Other politicians have chimed in that only people with something to hide would be concerned over such surveillance. Thus, Republican Senator Lindsay Graham scoffed at the notion that privacy is even relevant since only a terrorist would object to such powers.
Of course, the government must often read your mail and listen to calls to determine if you are a terrorist…or just a target. A recent report documented how the National Security Agency has been gathering records of online sexual activity to be used to harm the reputation of people considered radicals. Among the targets is at least one individual identified as a “US person”. The NSA is gathering dirt such as “viewing sexually explicit material online”, and “using sexually explicit persuasive language when communicating with inexperienced young girls”. Shawn Turner, director of public affairs for National Intelligence, responded to media requests with little more than a shrug, saying such activities “should not be surprising” since the “the US government uses all of the lawful tools at our disposal” against people deemed enemies of the state. Of course, it is available at their disposal because of increased and unchecked powers assumed by this President.
Inside Story – The diplomatic cost of US surveillance
This “watch list” apparently includes people with unpopular views. The published documents refer to one target as attracting the NSA’s ire by arguing that, “Non-Muslims are a threat to Islam,” and then identified his vulnerability as “online promiscuity”. Another academic dared to write in support of the concept of “offensive jihad” and so the NSA targeted him for his “online promiscuity” and noted he “publishes articles without checking facts”.
Bush Administration officials are already applauding Obama for his administration’s gathering of dirt on targeted individuals. Indeed, supporters are now citing the president’s “kill list” as a rationale for this new controversial system under a lesser evil rationale. Stewart Baker, former general counsel for the NSA in the George W Bush administration, insisted that, “on the whole, it’s fairer and maybe more humane” than vaporizing them.
In a prior conference, Obama repeated the siren call of authoritarians throughout history: While these powers are great, our motives are benign. So there you have it. The government is promising to better protect you if you just surrender this last measure of privacy. Perhaps we deserve little better. After all, it was Benjamin Franklin who warned: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has testified before Congress on the dangerous expansion of presidential powers.
HOLIDAY HAZARDS AND BEST WISHES FOR A LITIGATION-FREE NEW YEAR
Christmas and the New Year come but once a year. It is the lament of many a child … and not a few lawyers. These two holidays seem designed for personal injury lawyers, thanks to homes filled with combustible trees, poor wiring, acrobatic decoration hangings, overconsumption of alcohol and overpacked vehicles traveling long distances.
Despite teaching torts, I have been the poster boy of the most common holiday hazards, though some statistics show I have plenty of company.
For example, those house decorations are a virtual siren’s call for slip-and-fall lawyers. The U.S. Consumer Product Safety Commission estimated that 15,000 people were injured during last year’s November and December in holiday decorating mishaps. Some 34% of those accidents were from falls, while lacerations made up 11% and back strains made up 10%.
I have had them all: falls, back injuries, cuts and shocks. A couple years ago, I inflated a 7-foot penguin on top of my house only to learn that there was not enough room for me and “Pengy.” As I was slowly pushed to the edge, I hanged on to the penguin for dear life while trying desperately to pull his plug.
This year, I succeeded in shocking myself on a string of outdoor Christmas lights with an exposed wire — bouncing me off a ladder into a prickly holly tree.
While Christmas trees are another common source for accidents, the greatest fire danger are not the trees but candles. From 2009 through 2011, hundreds of fires and 70 deaths were attributed to candles — seven times the number attributed to trees.
Then there is the infamous fruitcake — with some in re-gifted circulation since the Christmas Truce of 1914. Just this month, the annual fruitcake eating contest in Santa Claus, Ind., was rocked by scandal after the winner was dethroned for hiding half an uneaten fruitcake under a napkin.
Finally, Antoinette Basso actually had a drunken Santa fall on top of her on a Chicago street — leading to a negligence lawsuit a few years ago.
Like generals preparing to fight the last war, we tend to work to avoid last year’s holiday disaster and miss the ones developing in front of us.
For example, after prior luggage disasters, I purchased a top-of-the-line roof carrier. I then overstuffed the carrier, which proceeded to burst open in the middle of the night on a two-lane highway. All the wrapped presents hidden in the carrier were then deposited across the highway in full view of the children, and most of the packages were ground into holiday chum by 18-wheelers moving at 90 miles an hour. I found a pair of socks in the dark before we continued to Chicago.
Then there are the gifts themselves, such as the “Elmo Knows Your Name” doll that one couple bought for their son James. The doll freaked out the kid by repeatedly saying, “Kill James.”
I faced a different problem one year when I stuffed the toys for the four children into my carrier (now secured by about a dozen bungee cords). The problem was the toy “Talking Grill” wouldn’t stop talking. By Toledo, the battery loss produced a low level moaning that spooked the children for 12 hours while they sat in the dark. They listened to this voice through Indiana, Ohio and most of Pennsylvania before it finally died on the top of the car — leaving the kids staring blankly forward like shell-shock victims.
New Year’s Eve offers hazards of a different kind for torts and crimes. The most obvious is drunken driving, though you might be surprised by the actual statistics. It is Christmas, not New Year’s Eve, that produces the greatest number of auto accidents.
A study at the University of Alabama found that the six days around Christmas produced 18% more accidents than Thanksgiving weekend (which has the highest level of driving) and 27% more than around New Year’s Day.
Over all, the Highway Loss Data Institute says, you can expect a 20% increase in accidents in December.
One of the greatest dangers is actually found in that symbol of the New Year: champagne. The American Academy of Ophthalmology has launched a campaign to reduce the number of people who put their eyes out with champagne corks.
So I wish everyone a torts-free holiday, but just in case, keep your lawyer on speed dial.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
USA Today December 27, 2013
THE CASE FOR A PARDON FOR EDWARD SNOWDEN
Former CIA Director R. James Woolsey weighed in last week on the subject of Edward Snowden. Asked about calls of clemency for the former National Security Agency contractor, Woolsey insisted that Snowden should be “hanged by the neck until he is dead.”
Woolsey reflects the current thinking in Washington: reform for the NSA and the rope for Snowden. However, it may be time for President Obama to show real leadership and acknowledge that Snowden is the reason for the current reform push.
It may be time to pardon Edward Snowden.
He has almost certainly committed criminal acts in removing and disclosing classified material. As someone who has held a top-secret clearance since the Reagan administration, I do not condone such violations of national security laws. However, Snowden is a better candidate for clemency than many believe.
A presidential pardon is not an endorsement of the underlying actions of an individual. To the contrary, the vast majority of pardons follow criminal convictions. Rather, pardons are issued because of mitigating or extenuating circumstances.
Sometimes clemency is a way of healing a national divide or bringing closure to a national controversy. George Washington pardoned all of those in the Whiskey Rebellion, and John Adams considered it in “the public good” to pardon Pennsylvania rebels. Likewise, Gerald Ford did not condone the crimes of Richard Nixon, but he viewed a pardon as in the best interest of the country.
YEAR IN REVIEW: Highs, lows and an ‘other’ at the Supreme Court
Presidential pardons can be issued at any time after an alleged offense, even before a person is charged or convicted. Such was the case with Jimmy Carter’s pardon of draft dodgers and Ronald Reagan’s pardon of the six officials accused in the Iran-Contra affair.
When considered in light of the thousands of past pardon and commutation recipients, Snowden compares favorably. Indeed, there have been many questionable pardons granted over the years to well-connected defendants, like that of businessman Marc Rich, who was convicted of tax evasion and other crimes but then pardoned by Bill Clinton.
While the Obama administration continues to insist that Snowden does not fit the definition of a whistle-blower, even the White House admits that abuses occurred in the massive NSA surveillance program that he revealed. Snowden’s disclosures have prompted the creation of two task forces, one of which came back last week with a recommendation of numerous reforms. Moreover, a federal judge has now ruled that the NSA program is flagrantly unconstitutional.
Snowden may have revealed a larger volume of material, but he is not the first to disclose highly classified matters. Most whistle-blowers release either confidential or classified material. Indeed, Daniel Ellsberg’s leak of the Pentagon Papers (celebrated as one of the most important moments in our history) involved the release of classified documents that the Nixon administration insisted placed the entire nation at risk.
Snowden faced a system that was entirely uninterested in, if not outright hostile to, hearing about abuses. Indeed, various people had tried to raise questions about the extent of government surveillance in previous years. I represented one prior NSA whistle-blower who disclosed the massive surveillance program, but the public ignored him and he was threatened with arrest.
Despite such cases and media coverage, the White House and Congress turned a blind eye to abuses. It was Snowden who forced action by leaking documents to a journalist. Both Obama and congressional leaders have called for Snowden’s arrest, but he was as much their creation as his own.
Some NSA officials have already suggested that amnesty could be used to secure thousands of documents still in Snowden’s possession. A pardon could be conditioned on the return of all these documents and the signing of a nondisclosure agreement that would allow prosecution for any further disclosures.
Moreover, a pardon would demonstrate to both Americans and our allies that the White House is serious about reform, and accepts responsibility for the abuses that have been documented.
Finally, a pardon would resolve a glaring contradiction in how the White House has dealt with alleged crimes by national security officials. After all, this is the president who pledged early in his first term that no CIA employee would be investigated, let alone prosecuted, for the Bush torture program. Likewise, no one was prosecuted when CIA officials admitted destroying torture tapes to avoid their use in any future prosecution. Finally, when the NSA program was raised in public, National Intelligence Director James Clapper appeared before Congress and lied about the program. He later said that he gave the least untruthful statement he could think of. But it was nevertheless untrue and potentially a crime for which he could be prosecuted.
But instead of firing Clapper and calling for his arrest, Obama asked him to participate on a task force to review the program.
Snowden could certainly take additional actions that could destroy any claim to a pardon. However, as he stands now, he has a greater claim than many who have received reprieves. He certainly deserves the same consideration in disclosing abuses that Obama officials received in concealing them from the public.
Jonathan Turley is a professor of public interest law at George Washington University and has served as lead defense counsel in national security cases.
Los Angeles Times (Sunday) December 22, 2013
BEWARE OF TASK FORCES BEARING GIFTS
With the release of the recommendations of President Obama’s review board on the NSA phone-record surveillance program, it is easy to feel like that Trojan looking down at a magnificent wooden horse outside the city gates and warning his fellow citizens to “beware of Greeks bearing gifts.” The same can be said of federal task forces bearing “reforms.”
On closer examination, the 46 recommendations of the task force are largely cosmetic and administrative changes that notably keep one thing: the program itself. Under the “reforms,” the massive gathering of hundreds of millions of communications records by the National Security Agency could continue. Meanwhile, the administration is still hunting Edward Snowden, the government contractor responsible for disclosing these abuses.
In other words, we want reforms so long as we can punish the man who forced us into reforms.
Task force Tylenol
In Washington, task forces work like Tylenol: they reduce the symptoms of scandal while leaving the substance untouched. The task force was always expected to suggest changes, given both domestic criticism and the outcry from some of our closest allies. But the task force was also expected to assume that the president has inherent authority to legally capture records of calls and e-mails without a warrant.
That is a view not shared by a conservative judge this week in Washington. U.S. District Court Judge Richard Leon found that the surveillance program was flagrantly unconstitutional and questioned not just the legality but also the efficacy of the massive surveillance program.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of … analyzing it without judicial approval,” he wrote.
Leon correctly observed that the Framers would have been “aghast” by the evasion of the Fourth Amendment, which protects against warrantless searches and seizures.
By starting with the view that the program is lawful, the task force recommended many changes that require little more than moving boxes on organizational charts and ordering new letterhead. Among other things, it suggested that the “metadata” be simply housed with the telecommunications companies rather than the NSA.
It suggested that the NSA be placed under civilian control and that a key office be moved outside of the agency. It also recommended that the agencies tighten security clearances — presumably to avoid another Snowden.
That last proposal clearly resonates with the White House, which has worked hard to manage the scandal more than to reform the program. From the outset, the creation of the two task forces (one on surveillance and one on privacy) was met by skepticism by the civil liberties community.
Fox in the henhouse
On this task force, the president picked Michael Morell, a former CIA deputy director under Obama (who served during the alleged abuses); Richard Clarke, the Bush U.S. counterterrorism chief; Peter Swire, a former Obama economic and privacy official; Cass Sunstein, a former White House regulatory official who has publicly supported draconian national security measures; and Geoffrey Stone, a University of Chicago law professor. While Stone and Swire were viewed as more protective of privacy, it was a board that seemed to guarantee incremental rather than sweeping changes.
This effort was further undermined when Obama ordered the involvement of his national intelligence chief John Clapper, who had just admitted publicly that he lied before Congress to conceal the scope of this very program. Of course, Clapper was never investigated, let alone prosecuted, for the crime of lying to Congress. Instead, Obama has called for the pursuit and punishment of Snowden, who disclosed the abuses Clapper lied about.
This week, former CIA director James Woolsey went as far as to call for Snowden to be “hanged by his neck until he is dead.” Simultaneously offering reforms and the rope can send a curiously conflicted message.
A federal judge has now ruled that what the president was doing was unlawful. Congress and the White House now agree that abuses occurred and reforms are needed. Before the White House implements reforms to prevent the next Snowden, it is time to deal with the current one.
There is one concrete way for the president to demonstrate good faith in dealing with the reforms: Pardon Edward Snowden.
USA TODAY, DECEMBER 20, 2013
CLOSE ENOUGH FOR GOVERNMENT WORK?
On Oct. 1, millions of citizens came face to face with one of the greatest blunders of our generation. After almost half a billion dollars spent on the computer registration system for Obamacare, the website coughed, sputtered and appeared to descend into an immediate coma as millions tried to log on. One reason is that the Obama administration never fully tested it.
For many, the greatest surprise was not that the government spent wildly on a defective system, but that the failure did not result in a single termination. While the agency’s top technology officer, Tony Trenkle, wisely is retiring, the appearance of the still employed Health and Human Services Secretary Kathleen Sebelius at a congressional hearing this week led many to ask a reasonable question: What does it take to lose a government job?
If recent scandals are any measure, the answer is chilling. Of course, one would have thought that a$400 million debacle would fit easily under “fireable offenses.” This is particularly the case when contractors testify that it was the administration that decided not to fully test the system. Then there is the use of a contractor that was terminated earlier in Canada for allegedly fouling up the computer system for Ontario.
The Obamacare six
During her testimony before the Senate Finance Committee, Sebelius admitted that the website is still “not where we need to be.” That is quite an understatement. One government estimate put the number of people registered in the first 24 hours at six. If that seems a joke, it was. In a Saturday Night Live skit, Kate McKinnon played Sebelius and noted, “Millions of Americans are visiting HealthCare.gov, which is great news. Unfortunately, the site was only designed to handle six users at a time.” Still, the Obama administration insists it will not release the current number of actually registered people until the middle of November while admitting that it will be low.
However, if history is any judge, Sebelius can take heart. Her job should be secure. Neither crimes nor incompetence seems to meet the standard for termination for federal employment. Take National Intelligence Director James Clapper. In a public hearing before Congress, Clapper denied that the NSA was collecting “any type of data at all on millions or hundreds of millions of Americans.” That was clearly false. Clapper later admitted that he gave “the least untruthful” statement that he could think of. That, of course, would still make it a lie and thus perjury. However, Clapper was neither prosecuted nor fired.
Likewise, waste is something that does not even register in Washington. The Pentagon ordered a dozen Italian-built C-27J Spartans at nearly $50 million a pop only to roll them directly from the factories into mothballs. That’s right, $567 million of aircraft sent directly to a facility in Arizona dubbed “the boneyard.” Then there is the $772 million spent for 30 Russian Mi-17 helicopters that an inspector general report found could not be flown by the Afghans. Then there is the $34 million spent to build a huge headquarters longer than a football field for the Marines in Afghanistan with a theater, special operations rooms and other amenities. The Pentagon did so despite the objections from the commander that the Marines neither needed nor wanted the building. An inspector general found that the 64,000-square-foot facility “will probably be demolished” without being used.
Even when lives are lost, negligence is not a basis for termination, as shown in the Benghazi scandal. The State Department’s own internal review found “systemic failures and leadership and management deficiencies” leading to the deaths of four Americans, including the U.S. ambassador to Libya, Christopher Stevens. But the Accountability Review Board “recognizes that poor performance does not ordinarily constitute a breach of duty that would serve as a basis for disciplinary action but is instead addressed through the performance management system.” In other words, even with four dead and an international crisis, the officials responsible could only be “reassigned.”
Arrogance of power
Given this history, one can understand Sebelius’ response to critics that “the majority of people calling for me to resign … are people I don’t work for.” Indeed, the people whom she works for measure success along political, not performance, lines.
Accordingly, new contracts have been issued to fix the Obamacare registration system. And, in the ultimate triumph of hope over experience, Sebelius is promising to personally ensure their success.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
USA Today November 8, 2013
Across the country, citizens are increasingly finding themselves stopped on routine traffic stops or sobriety checkpoints only to be subjected to extensive questioning and searches. At a time of decreasing budgets, police seem to be hitting the streets in search of their own sources of funding.
Federal and state officers are tapping into an increasingly lucrative tactic called “churning” or “policing for profits.” This is how it often works:
Officers stop cars on a pretext such as not using a turn signal and then ask a series of questions about drugs or contraband in the car. If the driver does not consent to a search, officers will sometime declare that the driver is acting suspiciously and call in a drug dog or search the passenger for their own personal safety. Any drugs found can then be used to seize the car and any money inside of it. The result is that police are mining our highways for jackpot stops.
Churning has become the self-help solution for some federal agencies. The most recent example of this trend was highlighted by an investigation into the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Justice Department’s inspector general found that the ATF conducted dozens of unauthorized undercover investigations into illicit cigarette sales and lost track of 420 million cigarettes worth $127 million. The investigation concluded that the ATF was engaging in churning operations designed to fund its operations and misused $162 million in profits.
The same tactic is occurring on the state level where police are using highways to troll for cash and contraband. Empowered by a U.S. Supreme Court ruling that sobriety checkpoints are constitutional, they’re setting up sobriety checkpoints to question drivers on drugs and contraband.
In Mayfield Heights, Ohio, this summer, police used the threat of an unconstitutional search to give them a basis for stopping and searching vehicles. They put up signs warning drivers that they were approaching a drug checkpoint. There was no actual checkpoint, rather, they simply looked for anyone pulling off the road or taking evasive action. When people challenged the ruse, assistant prosecutor Dominic Vitantonio responded, “We should be applauded for doing this. It’s a good thing.”
The Supreme Court allowed such deceptive use of stops in 1996 when it declared that it would no longer consider the motivations of police for such stops. Once allowed to engage in pretext stops, police have every motivation to use the tactic. To put it simply, police are developing an addiction to drug money.
Consider the case of George Reby, an insurance adjuster from New Jersey. Last year, he was stopped in Tennessee by officer Larry Bates for speeding and asked whether he had a large quantity of money. Reby said he had about $20,000 and explained that he planned to buy a car. Bates seized the money. He did not arrest Reby, mind you. Reby committed no crime. The officer stated that police would keep the money until Reby could prove to their satisfaction that it was legitimate.
Life savings taken
Then there is Tara Mishra, who had given her life savings to friends as her share in a new business. Last year, a Nebraska state trooper stopped her friends for speeding and asked to search for drugs. The couple agreed, and the troopers found more than $1 million. Though the couple explained why Mishra had given them the money and though no drugs were found, police kept the cash after a K-9 analysis found drug residue on it.
It was another pretext. Studies show a high percentage of money has such residue on it. Mishra was forced to litigate until a federal judge ordered the money returned to her in July.
In searching a car on a pretext, the odds of scoring an arrest can be as low as one in 100 stops, so some police departments appear to try to make up the difference in volume. For example, one study found the California Highway Patrol stopped about 34,000 cars in 1997 but seized contraband during only 2% of the stops.
At such stops, citizens invoke their rights at their own peril. One recent video shows an irate officer ordering a driver to pull to the side after he questioned the basis for the stop. He was forced to wait for a drug dog, which signaled the presence of drugs after the officer notably pointed at the door. The police then unleashed a full drug search. After finding no drugs, the officer is heard warning his partner, “He’s perfectly innocent, and he knows his rights; he knows what the Constitution says.”
Of course, his rights really are not much of a barrier when the Supreme Court has expressly stated that it will not question motives of officers.
Until either the court or Congress acts, citizens will continue to be harvested on our highways by departments seeking new sources of funding.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
USA Today: October 30, 2013
Last week, the U.S. government declassified a report about a secret facility in Nevada. Such declassifications are nothing new but, from the report’s 400 pages, two words immediately jumped out: Area 51. The government had finally acknowledged the name of a controversial base in the desert north of Las Vegas where it conducted top-secret research.
The document’s release will do little to quash the glut of Area 51 conspiracy theories about recovered alien spaceships and government cover-ups. But the real cover-up there has nothing to do with UFOs. Area 51 was more than a national security site; it was also an alleged crime scene, and at least two good men may have died from what occurred there. They were not hurt by aliens but by their own government, which refused to declassify information they needed to understand what had happened to them.
During the 1990s, I represented Area 51 workers in two lawsuits. The suits, which forced the first official recognition of the base — though not its name — were the first against a “black facility,” one whose very existence is denied by the government. Over the course of the litigation, the contents of my office were classified, I was threatened with arrest, workers and their families were threatened with prosecution and we had to go as far as Moscow to find images to prove the existence of the base.
Area 51, as the newly declassified material makes clear, was a test site for Cold War technology, including the U-2 spy plane. But it was also, according to people who worked there, a hazardous waste site, at which classified equipment and materials were disposed of in an illegal and extremely dangerous manner.
When workers at Area 51 first came to me in the 1990s, they described how the government had placed discarded equipment and hazardous waste in open trenches the length of football fields, then doused them with jet fuel and set them on fire. The highly toxic smoke blowing through the desert base was known as “London fog” by workers. Many came down with classic skin and respiratory illnesses associated with exposure to burning hazardous waste. A chief aim of the lawsuits was to discover exactly what the workers had been exposed to so they could get appropriate medical care.
The first hurdle was the government’s refusal to acknowledge even the existence, let alone the name, of the facility. We supplied pictures of the base. We supplied affidavits from workers at the base. We even submitted pictures of planes taking off in Las Vegas and then the same planes landing at Area 51. At one point, I offered to drive the judge personally to the base and point at it from a mountaintop. (The government then acquired the mountaintop and barred the public.) Ultimately, the government confirmed the existence of the base only after we located Russian satellite pictures. It turned out that the Russians had a virtual catalog of pictures of Area 51 for public sale. You just needed a credit card.
That did not end the bizarre character of the litigation. My office was off-limits to anyone but myself. I was forced to meet with my clients in seedy motels and garages to avoid their being arrested. My last memory of one client, Wally Kasza, was of him sitting in a car in a Las Vegas garage with his oxygen tank and medications. He had only weeks to live but wanted me to promise to continue to fight to hold the government accountable.
In the end, we prevailed in demonstrating that the government had acted in violation of federal law. However, the government refused to declassify information about what it had burned in the trenches, which meant that workers (and their doctors) still didn’t know what they had been exposed to. The government also refused to acknowledge the name of the base.
The burning at Area 51 was in all likelihood a federal crime. But the government escaped responsibility by hiding behind secrecy: How could the law be applied at a place that did not exist for the burning of unknown things? Of course, Kasza did exist, as did his colleagues, including another worker who died, Bob Frost. But when they became sick — with rashes, racking coughs or dreadful skin conditions — they were barred from telling doctors where they worked or what they had been exposed to. After Frost’s death, an analysis of tissue samples from his body found unidentifiable and exotic substances that one of the nation’s premier scientists could not recognize.
The newly released report doesn’t clear up those questions, and it comes after the statute of limitations has passed for any crimes that may have been committed there. The report also contradicts statements given to the court in our case. Most notably, in 1995, the government’s lead counsel, Col. Richard Sarver, told Judge Philip Pro: “Your honor, there is no name. There is no name for the operating location near Groom Lake.” Hiding behind that fiction allowed government officials to avoid accountability for these unlawful operations.
The officials responsible for those alleged crimes have now retired. But the truth is still out there. The question is whether anyone really wants to know it.
Jonathan Turley, a professor of public interest law at George Washington University, was lead counsel in the Area 51 litigation.
Los Angeles Times August 20, 2013
LAW AND LEGEND IN THE ZIMMERMAN TRIAL
The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama administration.
With the verdict, the Zimmerman case entered the realm of legal mythology — a tale told by different groups in radically different ways for different purposes. Fax machines were activated with solicitations and sound bites programmed for this moment.
Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters — discarding those facts that do not fit our narrative. Zimmerman and Martin became proxies in our unresolved national debate over race.
Many have condemned this jury and some even called for the six jurors to be killed or demanded that they “kill themselves.” The fact is that this jury had little choice given the case presented by the prosecutors. This is why I predicted full acquittal before the case even went to the jury.
Before the case is lost forever to the artistic license of social commentary, it is worth considering what the jurors were given, or not given.
State attorney’s misstep
The problem began at the start. Many of us criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Investigators interviewed a key witness at the Martin home in the presence of the family — a highly irregular practice.
The decision to push the second-degree murder charge (while satisfying many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have turned out differently.
The prosecutors then made that bad decision of charges worse by overplaying their evidence to overcome the testimony of their own witnesses.
For example, the prosecution inexplicably decided to lead the case with testimony of Martin’s friend Rachel Jeantel. Jeantel was a disaster, admitting to lying previously under oath and giving conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution’s zeal for conviction seemed to blind it to the actual strengths and weakness of the case. It also led to allegations of withholding key evidence from the defense to deny its use at trial, though Judge Debra Nelson seemed to struggle to ignore the alleged misconduct.
Some questions unanswered
Ultimately, we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don’t make social judgment or guesses on verdicts.
While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
Various witnesses said Martin was on top of Zimmerman and said they believed that he was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries from the struggle. Does that mean that he was clearly the victim? No. It does create added doubt on the use of lethal force.
A juror could not simply assume Zimmerman was the aggressor. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial.
Even for manslaughter, the jury was told that Zimmerman was justified in the use of force if he feared “great bodily harm.” That brought the jury back to the question of how the fight unfolded.
The acquittal does not even mean that the jurors liked Zimmerman or his actions. It does not even mean they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.
Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. A legend is defined as “a traditional story sometimes popularly regarded as historical but unauthenticated.”
People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
July 15, 2013
SEPARATING LAW AND LEGEND IN THE ZIMMERMAN VERDICT
The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama Administration. There was even a call for President Barack Obama to address the nation from the Oval Office to promise action to quell projected violence. With the verdict, the George Zimmerman case entered the realm of legal mythology – a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and soundbites previously programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.
Criminal cases make for perfect and often dangerous vehicles for social expression. They allow long-standing social and racial issues to be personified in villains and victims. We simplify facts and characters – discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. George Zimmerman and Trayvon Martin became proxies in a long-standing our unresolved national debate over race.
Before the case is lost forever to the artistic license of social commentary, a few legal observations should be considered, even if unpopular, before condemning this jury.
First, many of us from the first day of the indictment criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Investigators incorporated the family in key interviews. For example, one key witness was first interviewed by an attorney for Martin’s family and then talked to prosecutors in the home of Martin’s mother. The prosecutors were accused of withholding evidence from the defense until shortly before trial — a delay that the defense said denied them the ability to use text messages that portrayed Martin in a more violent image.
However, the widespread protests and anger over the shooting seemed to have its greatest impact on Corey’s decision to charge the case as murder in the second degree. This was clearly a challenging case even for manslaughter and the decision to push second-degree murder (while satisfying to many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that George Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have been closer but would have still been a challenge.
Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The prosecution clearly made its share of mistakes like leading its case with the testimony of Trayvon Martin’s friend, Rachel Jeantel. Jeantel was a disastrous witness who had to admit to lying previously under oath and produced conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses, such as handling the damaging testimony from the detective that Martin’s father clearly denied that it was his son calling for help (He later changed his mind after listening to the tape 20 times). Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third degree murder based on child abuse. The judge wisely rejected that demand but allowed the jury to consider manslaughter as a lesser charge.
However, in the end it was the case and not the prosecution that was demonstrably weak. The fact is that we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don’t make social judgments or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
Various witnesses said that Martin was on top of Zimmerman and said that they believed that Zimmerman was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create added doubt on the question of the use of lethal force.
There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. A juror could not simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial. There was evidence to support both accounts but that evidence remained in equipoise, leaving the jury with no objective basis to reject one over the other.
Even for manslaughter, the jury had to find that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin. but was told that “a killing that is excusable or was committed by the use of justifiable deadly force is lawful.” The jury instruction on deadly force states in part: “A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” That lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded. The prosecutors never had evidence to answer that question in a reasonably definitive way. In the end, the jury had no serious alternative to acquittal. That does not mean that they liked Zimmerman or his actions. It does not even mean that they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.
Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. A legend is defined as “a traditional story sometimes popularly regarded as historical but unauthenticated.” People will make what they will of the murder trial of George Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
July 14, 2013
AMERICA’S ANIMAL FARM: SNOWDEN AND THE SQUEALER
Below is my column today in USA Today on the criminal complaint against Edward Snowden. I have been criticizing the charge under the Espionage Act as abusive and a mistake by the Administration. President Barack Obama has been criticized for years for his use of the controversial 1917 Act. He is responsible for six of the nine total indictments ever brought under the Act. More than all presidents before him and putting Richard Nixon to shame. He has used the act against sources for journalists and only recently was criticized for the attacks on the free press under his Administration. I do not question the basis for prosecution of Snowden for the disclosure of classified information or any theft of such documents. However, the effort to put him away for life does raise an interesting contrast with prior cases, which is the subject of today’s column (slightly expanded from the print version).
As Edward Snowden travels the globe looking for refuge from U.S. law enforcement, the self-proclaimed leaker has finally done what wars and economic crisis failed to do. He has united both Democratic and Republican leaders in an increasing shrill chorus calling for his head. Many of these politicians insist that Snowden must be put away for life or even face the death penalty.
Yet, what unites both parties in anger does not appear to be the alleged breach of security but the greatest crime of all: embarrassing the establishment. Snowden embarrassed Congress and the White House by discussing not only massive secret surveillance of our citizens but also false statements given to the public by our leaders. For that, he might have to pay with his life.
For many, the recent disclosure of massive warrantless surveillance programs of all citizens by the Obama administration has brought back memories of George Orwell’s 1984. Such comparisons are understandable not only with the anniversary of the book occurring the very week of the disclosures but the Administration’s “doublethink” interpretations of common terms like “transparency” and “privacy.” According to President Obama, the secret surveillance program is not only entirely “transparent” but something of a triumph of privacy.
Yet, another Orwell book seems more apt as the White House and its allies try to contain the scandal: Animal Farm.
Orwell wrote the fanciful account of a farm society of animals at the end of World War II during a period of authoritarian power and government propaganda. The farm government proclaimed equality of all animals but, as the pig Squealer explained, “all animals are equal, but some animals are more equal than others.” As our leaders joined together on television to bloviate about the need to capture and try the “traitor” Snowden, they were affirming a system of laws that seems to apply to the governed exclusively.
Consider the charges against Snowden: Official Washington insists that “justice must be done” in the face of a clear criminal act. Yet, when one of their own commits a crime related to classified information, it is difficult to get Attorney General Eric Holder, many members of Congress or the president to even acknowledge it.
For example, there is a clear crime that has been documented and virtually confessed to in this scandal: perjury. Not by Snowden, mind you.
When National Intelligence Director James Clapper appeared before the Senate, he was asked directly, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir. … Not wittingly.”
We now know that was a lie. Moreover, many of the senators who heard that testimony knew it was a lie because they admitted later to knowing about the NSA program to gather data on every citizen. Later, Clapper said that his testimony was “the least untruthful” statement he could make. Yet, of course, that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Indeed, when Roger Clemens was prosecuted for untrue statements before Congress, he was not told of the option to tell the least untrue statement on steroid use.
Where are all of our law and order advocates in the face of the admission that Clapper lied to the Senate and the public? The Justice Department routinely prosecutes people for relatively small misrepresentations in testimony. This was a whopper. A premeditated, knowing lie. Yet, Holder has not even ordered an investigation into the possible perjury. Ironically, the attorney general himself recently gave testimony that was widely viewed as false on the surveillance of journalists and the treatment of journalist investigation as a criminal conspiracy.
Slap on the wrist
Even when the governing elite is caught violating the same law as Snowden, it is considered a minor transgression. Snowden is alleged to have stolen government classified documents and removed them from secure locations. Prosecutors will likely seek a lengthy sentence for that act alone.
But in 2005, Samuel “Sandy” Berger, a former White House national security adviser to Bill Clinton, faced that same charge after he intentionally removed and destroyed copies of a classified document. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time. That’s right, not a day. Just a fine and a three-year suspension of his security clearance. In other words, the deal allowed Berger to walk and even allowed him to reacquire a clearance after just three years.
Of course, none of our politicians is nearly as open and honest as Squealer. There will be no sign proclaiming the different treatment of the governing and governed classes. They prefer the barnyard to return to its previously sleepy existence once the offender has been put away.
June 24, 2013
OBAMA AND THE FINAL MEASURE OF DEVOTION
Over the course of five years, President Obama has demanded much from him supporters from promising not to prosecute officials for torture to ordering warrantless surveillance to the quashing of dozens of public interest lawsuits seeking judicial review of his policies to the recent attack on the free press. He even claimed, under his “Kill List” policy , the right to kill any U.S. citizen that he believes to be a threat to the United States. Yet, most Democrats stuck with Obama. Now, however, Obama is demanding the final measure of devotion — he is asking supporters to abandon privacy principles in a move that will fundamentally alter our society. Indeed, he and congressional allies are trying to convince Americans that they can free themselves of fear by simply redefining privacy in a new and surveillance friendly image.
At issue are massive surveillance programs through which the administration has seized data on every call made by every citizen. At the same time, data on millions of emails are being stored showing addresses, subject lines, and attachments. The effort allows citizens to be tracked in their associations and communications. In other words, total transparency of citizens in a new fishbowl society. In response to the outcry last week, Obama and others assured citizens that they have nothing to fear from the government collecting their calls and data. It was like a scene out of the movie The Matrix with politicians trying to convince people to give up their fears and learn to love living in the artificial environment created for them. Of course, as with the prior notions of the free press and the unilateral use of lethal force, people have to surrender prior notions of privacy. Obama explained these are just modest intrusions in the new concept of government-approved privacy. He insisted that so long as the government did not read your emails or listen to your calls, there is no danger to privacy. Likewise, Sen. Lindsay Graham scoffed at the notion of any concern over privacy so long as you don’t call a terrorist.
It is true that the Supreme Court in 1979 ruled that there is less protection afforded to phone numbers, which can be acquired under “pen registers.” Yet, even accepting that ill-conceived decision in Smith v. Maryland, the Court was addressing government seizure of numbers to individuals who become material to investigations. The government previously used “national security letters” to get such information. What the Obama administration has done is effectively issue a national security letter for every citizens in America. Recently, the Obama administration admitted to putting reporters under surveillance and seizing such information in what is viewed by many as an extreme attack on the principles of the free press. Many citizens remained quiet as the administration called reporters potential criminals for speaking with sources in the administration. Then, they learned the government was gathering the same information from them and all other citizens.
The new privacy model would protect only the content of your emails and calls — unless the government wants to read them. Before we are lulled back to sleep by our leaders, it is worth noting what you are about to give up.
The government has been secretly collecting all of your contacts from your intimate friends to political associations to doctors to product suppliers. Thus, if you are a government employee seeking information on being a whistleblower, your effort to reach lawyers or whistleblower groups will be seized.
Consider who you have called or emailed in the last month. The government can learn a great deal about you from just the people you call and subjects of your emails. Your “metadata” can reveal peculiar tastes and associations that you may consider hidden from all but your closest friends – and now a few thousand government monitors. The government will now know not only who you are calling but how long you are speaking, how often you call people or groups, where you call from, and even attachments like photos that you send. Ironically, the actual content of your calls or emails are usually not needed to determine the reason and subject of such communications. When you call an abortion clinic repeatedly or a medical marijuana resource line, the likely purpose of the call is self-evident. For citizens with unpopular political or religious views, repeated calls or emails to certain churches or groups indicate an obvious interest. From intimate affairs to political associations, the purpose of most communications are self-evident, particularly when they are placed within a mosaic of all of your contacts and calls.
In his press conference, Obama repeated the siren call of all authoritarian figures throughout history: while these powers are great, our motives are benign. So there you have it. The government is promising to better protect you if you just surrender this last measure of privacy. Perhaps it is time. After all, it was Benjamin Franklin who warned that “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
JUNE 10, 2013
Here is today’s column in USA Today calling for the firing of Attorney General Eric Holder (I have added a couple lines removed in editing). Holder is not the only individuals who need to leave federal office but he is the first. Equally responsible are his deputy, James Cole, and Ronald Machen Jr., the U.S. attorney for the District of Columbia who played critical roles in the investigation of journalists with Associated Press and Fox News.
Recently, Attorney General Eric Holder appeared before the House Judiciary Committee to answer questions about the administration’s sweeping surveillance of journalists with the Associated Press. In the greatest attack on the free press in decades, the Justice Department seized phone records for reporters and editors in at least three AP offices as well as its office in the House of Representatives. Holder, however, proceeded to claim absolute and blissful ignorance of the investigation, even failing to recall when or how he recused himself.
Yet, this was only the latest attack on the news media under Holder’s leadership. Despite his record, he expressed surprise at the hearing that the head of the Republican National Committee had called for his resignation. After all, Holder pointed out, he did nothing. That is, of course, precisely the point. Unlike the head of the RNC, I am neither a Republican nor conservative, and I believe Holder should be fired.
The ‘sin eater’
Holder’s refusal to accept responsibility for the AP investigation was something of a change for the political insider. His value to President Obama has been his absolute loyalty. Holder is what we call a “sin eater” inside the Beltway — high-ranking associates who shield presidents from responsibility for their actions. Richard Nixon had H.R. Haldeman and John Ehrlichman. Ronald Reagan had Oliver North and Robert “Bud” McFarlane. George W. Bush had the ultimate sin eater: Dick Cheney, who seemed to have an insatiable appetite for sins to eat.
This role can be traced to 18th century Europe, when families would use a sin eater to clean the moral record of a dying person by eating bread from the person’s chest and drinking ale passed over his body. Back then, the ritual’s power was confined to removing minor sins.
For Obama, there has been no better sin eater than Holder. When the president promised CIA employees early in his first term that they would not be investigated for torture, it was the attorney general who shielded officials from prosecution. When the Obama administration decided it would expand secret and warrantless surveillance, it was Holder who justified it. When the president wanted the authority to kill any American he deemed a threat without charge or trial, it was Holder who went public to announce the “kill list” policy.
Last week, the Justice Department confirmed that it was Holder who personally approved the equally abusive search of Fox News correspondent James Rosen’s e-mail and phone records in another story involving leaked classified information. In the 2010 application for a secret warrant, the Obama administration named Rosen as “an aider and abettor and/or co-conspirator” to the leaking of classified materials. The Justice Department even investigated Rosen’s parents’ telephone number, and Holder was there to justify every attack on the news media.
Yet, at this month’s hearing, the attorney general had had his fill. Accordingly, Holder adopted an embarrassing mantra of “I have no knowledge” and “I had no involvement” throughout the questioning. When he was not reciting the equivalent to his name, rank and serial number, he was implicating his aide, Deputy Attorney General James Cole. Cole, it appears, is Holder’s sin eater. Holder was so busy denying responsibility for today’s scandals, he began denying known facts about older scandals. For example, Holder was asked about an earlier scandal in his administration in the handling of the “Fast and Furious” program where guns were allowed to be sold to criminal gangs. Holder insisted that Ronald C. Machen Jr., the U.S. attorney for the District of Columbia, was not told to decline the prosecution of Holder for contempt of Congress after refusing to turn over key documents and that “[Machen] made the determination about what he was going to do on his own.” However, Holder’s deputy, Cole, wrote to Machen to inform him (before the contempt citation even reached his office) that Main Justice “has determined that the Attorney General’s response to the subpoena . . . does not constitute a crime.”
In the end, Holder was the best witness against his continuing in office. His insistence that he did nothing was a telling moment. The attorney general has done little in his tenure to protect civil liberties or the free press. Rather, Holder has supervised a comprehensive erosion of privacy rights, press freedom and due process. This ignoble legacy was made possible by Democrats who would look at their shoes whenever the Obama administration was accused of constitutional abuses.
On Thursday, Obama responded to the outcry over the AP and Fox scandals by calling for an investigation by … you guessed it … Eric Holder. He ordered Holder to meet with news media representatives to hear their “concerns” and report back to him. He sent his old sin eater for a confab with the very targets of the abusive surveillance. Such an inquiry offers no reason to trust its conclusions.
The feeble response was the ultimate proof that these are Obama’s sins despite his effort to feign ignorance. It did not matter that Holder is the sin eater who has lost his stomach or that such mortal sins are not so easily digested. Indeed, these sins should be fatal for any attorney general.
May 29, 2013 USA Today
Below is today’s column in the Washington Post’s Outlook Section on the dangers of America’s growing administrative state. Ask any elementary student and you will hear how the Framers carefully designed a tripartite, or three-branch, system to govern the United States. This separation of powers was meant to protect citizens from tyranny by making every branch dependent on each other to carry out the functions of government. These three branches held together through a type of outward pressure – each holding the other in place through their countervailing forces. Add a fourth branch and the structure begins to collapse. That is precisely what is happening as federal agencies grow beyond the traditional controls and oversight of the legislative and executive branches. The question is how a tripartite system can function as a quadripartite system. The answer, as demonstrated by the last two decades, is not well. The shift from a tripartite to a quadripartite system is not the result of simply the growth in the size of the government. Rather, it is a concern with the degree of independence and autonomy in the fourth branch that led me to write this column.
There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.
Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.
The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.
When James Madison and the other Framers fashioned a new constitutional structure in the wake of the failure of the Articles of Confederation they envisioned a vastly different government. Under the federalism model, states would be the dominant system with most of the revenue and responsibilities of governance. The federal government was virtually microsoptic by today’s standards. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.
[These numbers can be themselves misleading since much federal work is now done by contractors as part of “downsizing” but the work of the agencies has continued to expand. Moreover, technological advances have increased the reach of this workforce].
This exponential growth since the founding has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.
The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.
This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.
The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.
These agency proceedings are often mockeries of due process, with one-sided presumptions and procedural rules favoring the agency. And agencies increasingly seem to chafe at being denied their judicial authority. Just ask John E. Brennan. Brennan, a 50-year-old technology consultant, was charged with disorderly conduct and indecent exposure when he stripped at Portland International Airport last year in protest of invasive security measures by the Transportation Security Administration. He was cleared by a federal judge, who ruled that his stripping was a form of free speech. The TSA was undeterred. After the ruling, it pulled Brennan into its own agency courts under administrative charges.
The rise of the fourth branch has occurred alongside an unprecedented increase in presidential powers — from the power to determine when to go to war to the power to decide when it’s reasonable to vaporize a U.S. citizen in a drone strike. In this new order, information is jealously guarded and transparency has declined sharply. That trend, in turn, has given the fourth branch even greater insularity and independence. When Congress tries to respond to cases of agency abuse, it often finds officials walled off by claims of expanding executive privilege.
Of course, federal agencies officially report to the White House under the umbrella of the executive branch. But in practice, the agencies have evolved into largely independent entities over which the president has very limited control. Only 1 percent of federal positions are filled by political appointees, as opposed to career officials, and on average appointees serve only two years. At an individual level, career officials are insulated from political pressure by civil service rules. There are also entire agencies — including the Securities and Exchange Commission, the Federal Trade Commission and the Federal Communications Commission — that are protected from White House interference.
Some agencies have gone so far as to refuse to comply with presidential orders. For example, in 1992 President George H.W. Bush ordered the U.S. Postal Service to withdraw a lawsuit against the Postal Rate Commission, and he threatened to sack members of the Postal Service’s Board of Governors who denied him. The courts ruled in favor of the independence of the agency.
It’s a small percentage of agency matters that rise to the level of presidential notice. The rest remain the sole concern of agency discretion.
As the power of the fourth branch has grown, conflicts between the other branches have become more acute. There is no better example than the fights over presidential appointments.
Wielding its power to confirm, block or deny nominees is one of the few remaining ways Congress can influence agency policy and get a window into agency activity. Nominations now commonly trigger congressional demands for explanations of agencies’ decisions and disclosures of their documents. And that commonly leads to standoffs with the White House.
Take the fight over Richard Cordray, nominated to serve as the first director of the Consumer Financial Protection Bureau. Cordray is highly qualified, but Republican senators oppose the independence of the new bureau and have questions about its jurisdiction and funding. After those senators repeatedly blocked the nomination, Obama used a congressional break in January to make a recess appointment. Since then, two federal appeals courts have ruled that Obama’s recess appointments violated the Constitution and usurped congressional authority. While the fight continues in the Senate, the Obama administration has appealed to the Supreme Court.
It would be a mistake to dismiss such conflicts as products of our dysfunctional, partisan times. Today’s political divisions are mild compared with those in the early republic, as when President Thomas Jefferson described his predecessor’s tenure as “the reign of the witches.” Rather, today’s confrontations reflect the serious imbalance in the system.
The marginalization Congress feels is magnified for citizens, who are routinely pulled into the vortex of an administrative state that allows little challenge or appeal. The IRS scandal is the rare case in which internal agency priorities are forced into the public eye. Most of the time, such internal policies are hidden from public view and congressional oversight. While public participation in the promulgation of new regulations is allowed, and often required, the process is generally perfunctory and dismissive.
In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.
We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Washington Post (Sunday) May 26, 2013
DON’T MESS WITH WRIGLEY
Below is today’s column in USA Today. Aidan and I had a ball in Chicago from going to Hot Doug’s for hot dogs to Ed Debevik’s for hamburgers (and seeing our favorite waiter “Biscuit.). I even went into my old school Joseph Brennemann Elementary on Clarendon. But the highlight was taking Aidan to his first game at Wrigley, a major rite of passage for any Chicago native or Chicago progeny.
Last Friday, I sat with my 11-year-old son, Aidan, for more than three hours in a steady downpour of cold rain while being whipped by gusts of wind. We were shivering and soaked — and absolutely satisfied. We were in Wrigley field, the cultural and spiritual touchstone of the Chicago North Side. Yet, all was not well at Wrigley. The fans were not grumbling about the weather or the developing loss to the Cincinnati Reds. Rather they are glaring upward at the dry, remote skybox of Cubs Chairman Tom Ricketts and his entourage. Last week, Ricketts threatened to move the Cubs out of Wrigley unless he gets his way in changing the look of Wrigley Field.
Ricketts grew up in Omaha and lives in the tony Chicago suburb of Wilmette. He did not apparently know that the one thing you should never do is threaten fans who have lived under a curse for 68 years and never … ever … mess with Wrigley.
Ricketts is demanding a 6,000-square foot video board atop the left-field wall and four new signs ringing the outfield. He warned that if the Cubs “cannot get approval for this plan and our signage plans are blocked, we will then consider moving.”
For the record, the Chicago Cubs is ranked as the most profitable baseball team in America, and yet Ricketts felt it was necessary to threaten the city with killing this cherished landmark.
There is a name for what Ricketts did before the City Club: blasphemy. There are only two sins on the North Side. You cannot blaspheme the Cubs, and you cannot commit apostasy (by rooting for the White Sox). I admit that I would regret seeing the classic lines of Wrigley ruined by huge signs and boards. I grew up in this stadium and like many have a huge attachment to it. (Our family home is near Wrigley, and I used to hang outside as a kid with a transmitter radio to catch balls flying out of the park by hitters such as Ernie Banks and Billy Williams.)
Most people assumed Ricketts was bluffing. Wrigley is a major reason that this is the most profitable club; it sure isn’t the Cubs’ record. Without Wrigley, Ricketts would be left with one of the worst performing teams and some modern monstrosity stadium named after Old Spice or ThighMaster.
So don’t threaten us, Mr. Ricketts. We are fans of the oldest professional team in North American sports — any sport. We were there in 1932 when Ruth called the shot over the center field bleachers. We were there when the billy goat was thrown out of the stadium in the 1945 World Series and left us cursed for eternity. When you were working on your first Ameritrade, we were there in the rain-soaked, wind-whipped bleachers eating semicooked hot dogs and drinking warm Old Style beers.
You want a giant scoreboard, let’s talk about it. But don’t try to stare down fans who have been looking into a cursed goat’s eyes for seven decades. If Tommy wants his sign, Tommy needs to play nice.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
May 9, 2013
THE PAVLOVIAN POLITICS OF TERROR
For civil libertarians, all terrorist attacks come in two equally predictable parts. First, comes the terrorist attack, followed by an explosion of politicians calling for new security measures and surveillance.
It is the Pavlovian politics of terror. Before we even understood the facts about the Boston attack, Chicago Mayor Rahm Emanuel said he would continue to put cameras around the city even though Chicago already is one of the most surveilled cities in the United States.
New York Mayor Michael Bloomberg seemed to move from Big Gulp to Big Brother in seeking to reduce constitutional rights as if they are no more vital than the oversized sodas he famously tried to ban. Bloomberg simply proclaimed, “Our laws and our interpretation of the Constitution, I think, have to change.”
Rep. Pete King, R-N.Y., demanded more surveillance of Muslims in general. Meanwhile, Sen. Al Franken, D-Minn., wants more drones in the United States.
The terror bell rings, and politicians start to salivate over new security measures — protecting citizens from their own freedoms.
Appearance of safety
None of these proposals would have likely stopped the Boston bombings. Of course, the outcome might have been altered using already existing government authority better, following up on warnings from Russia, for instance.
Likewise, Likewise, no one is seriously discussing the necessity of shutting down an entire city to look for the suspect and conducting warrantless raids on countless homes (forcing some families into the streets with hands in the air) on the mere chance that one of the bombers might be inside.
Indeed, Dzhokhar Tsarnaev was ultimately found outside the “containment zone” once authorities abandoned near martial law. With people allowed out of their homes and with millions of new eyes on the street, Tsarnaev was quickly spotted hiding in a boat.
Regardless of those facts, politicians need to be seen as actively protecting public safety rather than simply allowing our already strong security measures to do their job. The easiest way to be seen doing something is by demanding more surveillance, reduced privacy and an expanded security state.
The suggestion is that more security measures necessarily mean more public safety. They don’t. Even the most repressive nations face terrorism.
Does more security work?
We need to keep this attack in perspective:
Two brothers built homemade bombs with common pressure cookers. They placed the devices in one of the most surveilled areas of Boston with an abundance of police present and just walked away.
No one is seriously questioning the value of having increased surveillance and police at major events. That was already the case with the Boston Marathon.
However, as a thousand papercuts from countless new laws and surveillance systems slowly kill our privacy, we might want to ask whether a fishbowl society will actually make us safer or just make us feel that way.
Jonathan Turley is a law professor at George Washington University and a member of USA TODAY’s Board of Contributors.
April 29, 2013
For civil libertarians, all terrorist attacks come in two equally predictable parts.
First, there is the terrorist attack itself — a sad reality of our modern life. Second, comes the inevitable explosion of politicians calling for new security measures and surveillance. We brace ourselves for this secondary blow, which generally comes before we even fully know what occurred in an attack or how it was allowed to occur.
Politicians need to be seen as actively protecting public safety and the easiest way is to add surveillance, reduce privacy and expand the security state. What they are not willing to discuss is the impossibility of detecting and deterring all attacks. The suggestion is that more security measures translate to more public safety. The fact is that even the most repressive nations with the most abusive security services, places such as China and Iran, have not been able to stop terrorist acts.
While police were still combing through the wreckage from the Boston Marathon, politicians ran to cameras to pledge more security measures and surveillance. Indeed, Chicago Mayor Rahm Emanuel demanded more cameras in response to the Boston attack. Chicago already is one of the most surveilled cities in the United States. Emanuel’s solution: add some more. It is a perfectly Pavlovian response of politicians eager to appear as champions of public safety.
We need to resist the calls for a greater security state and put this attack into perspective. These two brothers built homemade bombs with over-the-counter pressure cookers. They placed the devices in one of the most surveilled areas of Boston with an abundance of police and cameras. There is only so much that a free nation can do to avoid such an attack. Two men walked in a crowd and put two bags down on the ground shortly before detonation.
No one is seriously questioning the value of having increased surveillance and police at major events. That was already the case with the Boston Marathon. However, privacy is dying in the United States by a thousand papercuts from countless new laws and surveillance systems. Before we plunge ahead in creating a fishbowl society of surveillance, we might want to ask whether such new measures or devices will actually make us safer or just make us appear safer.
April 19, 2013
This week, the Supreme Court will consider whether a company can claim ownership of two human genes under a patent. Myriad Genetics currently holds a patent to two genes associated with breast cancer. The case challenges the long-held position of Congress that people can patent “anything under the sun that is made by man.” The case raises significant moral and legal issues as companies claim parts of the human genome as their property. Currently twenty percent of your genes are now claimed as private property. This case is part of an overall trend of claims over virtually every basic term, symbol, and now human genes under the sun. Human existence is being privatized to the point that a creative existence seems to require the consent of a new class of property overloads.
While Myriad Genetics argues that is only seeking to reap the rewards of its extensive research and development, others view its claim as a virtual franchising of the human body. The Myriad case raises fundamental questions on the meaning of property, including the treatment of the human genome as akin to a Hoover vacuum. Jonas Salk, the developer of the polio vaccine, was once asked if he owned the patent on this valuable vaccine. Salk famously replied in disbelief by asking “Could you patent the sun?” He said such things must belong “to the people.”
Today, most things under the sun (including images of the sun) seem claimed by patent, copyright, or trademark holders. Apple Computers even sued a grocery chain for using an apple as its symbol. While God may have created the apple, he failed to trademark it.
It has triggered a type of land rush as everyone grabs objects, expressions, and names like settlers carving up free land. This year, the Prince George’s County Board of Education moved to claim copyright to work created by staff and students that would include everything from a teacher’s lesson plan to a toddler’s finger painting project. Then there is Robert and Diane Maresca of Long Island who claimed “Occupy Wall Street” as a trademark as soon as the protest began. They were not part of the protests, mind you. They just wanted to make money off it and Robert Maresca insisted “if I didn’t buy it and use it, someone else will.”
Other terms from “Linsanity” to “Who Dat?” to the word “Yuuup” have been claimed. This often results in fights over the spoils of common terms. Last year, Roy Fox secured a copyright to the term “Harbowl” last year to make money off a Superbowl between the Baltimore Ravens coach John Harbaugh and San Francisco 49ers coach Jim Harbaugh. He was then muscled out by NFL lawyers insisting that no one can use the term “Bowl” but them.
As terms and images are grabbed in this mad rush, the laws have become the very inverse of their intended use. Rather than protecting inventions to encourage and reward creativity, these laws now restrict creative thought and invention with layers copyright, trademark, and patent claims. Interestingly, citizens find themselves traveling through a world where everything they see has a TM or © sign to signify the owner of items and expressions around them. The Susan G. Komen charity fund has repeatedly threatened lawsuits against other charities seeking to raise money with the words “for the cure.”
The Obama Administration has been criticized for yielding to the demands of lobbyists for higher and higher penalties, including criminal penalties, over such infringements. The Administration recently intervened in the Supreme Court to defend the ruinous fine of $222,000 imposed on a young Minnesota mother for sharing 24 songs. The Court refused to review a $675,000 fine against former college student Joel Tenenbaum for downloading and sharing 30 songs.
We have come a long way from men like Salk who viewed most things as properly owned in common by the people. It was only a matter of time that with people claiming everything under the Sun, they would soon direct their interest to people themselves as a type of chattel to be claimed. As the Supreme Court deliberates over the very ownership of our genes, there has never been a national debate over the commoditization of American life. If we do not want to live by the leave of a new property class, we have fight for our rights. Just be careful in how you say it. “Fight for your rights” is trademarked.
This month, I spoke at an event commemorating the 40th anniversary of the Watergate scandal with some of its survivors at the National Press Club. While much of the discussion looked back at the historic clash with President Nixon, I was struck by a different question: Who actually won? From unilateral military actions to warrantless surveillance that were key parts of the basis for Nixon’s impending impeachment, the painful fact is that Barack Obama is the president that Nixon always wanted to be.
Four decades ago, Nixon was halted in his determined effort to create an “imperial presidency” with unilateral powers and privileges. In 2013, Obama wields those very same powers openly and without serious opposition. The success of Obama in acquiring the long-denied powers of Nixon is one of his most remarkable, if ignoble, accomplishments. Consider a few examples:
Nixon’s use of warrantless surveillance led to the creation of a special court called the Foreign Intelligence Surveillance Court (FISA). But the reform turned out to be more form than substance. The secret court turned “probable cause” into a meaningless standard, virtually guaranteeing any surveillance the government wanted. After hundreds of thousands of applications over decades, only a couple have ever been denied.
Last month, the Supreme Court crushed any remaining illusions regarding FISA when it sided with the Obama administration in ruling that potential targets of such spying had to have proof they were spied upon before filing lawsuits, even if the government has declared such evidence to be secret. That’s only the latest among dozens of lawsuits the administration has blocked while surveillance expands exponentially.
Unilateral military action
Nixon’s impeachment included the charge that he evaded Congress’ sole authority to declare war by invading Cambodia. In the Libyan “mission,” Obama announced that only he had the inherent authority to decide what is a “war” and that so long as he called it something different, no congressional approval or even consultation was necessary. He proceeded to bomb a nation’s capital, destroy military units and spend more than a billion dollars in support of one side in a civil war.
Nixon ordered a burglary to find evidence to use against Daniel Ellsberg, who gave the famed Pentagon Papers to the press, and later tried to imprison him. Ellsberg was later told of a secret plot by the White House “plumbers” to “incapacitate” him in a physical attack. It was a shocking revelation. That’s nothing compared with Obama’s assertion of the right to kill any U.S. citizen without a charge, let alone conviction, based on his sole authority. A recently leaked memo argues that the president has a right to kill a citizen even when he lacks “clear evidence (of) a specific attack” being planned.
Attacking whistle-blowers and Journalists
Nixon was known for his attacks on whistle-blowers. He used the Espionage Act of 1917 to bring a rare criminal case against Ellsberg. Nixon was vilified for the abuse of the law. Obama has brought twice as many such prosecutions as all prior presidents combined. While refusing to prosecute anyone for actual torture, the Obama administration has prosecuted former CIA employee John Kiriakou for disclosing the torture program. The Obama Administration has also threatened action against journalists in receiving precisely the same type of information published in the Pentagon Papers during Nixon’s administration.
Other Nixonesque areas include Obama’s overuse of classification laws and withholding material from Congress. There are even missing tapes. In the torture scandal, CIA officials admitted to destroying tapes that they feared could be used against them in criminal cases. Of course, Nixon had missing tapes, but Rose Mary Woods claimed to have erased them by mistake, as opposed to current officials who openly admit to intentional destruction.
Obama has not only openly asserted powers that were the grounds for Nixon’s impeachment, but he has made many love him for it. More than any figure in history, Obama has been a disaster for the U.S. civil liberties movement. By coming out of the Democratic Party and assuming an iconic position, Obama has ripped the movement in half. Many Democrats and progressive activists find themselves unable to oppose Obama for the authoritarian powers he has assumed. It is not simply a case of personality trumping principle; it is a cult of personality.
Long after Watergate, not only has the presidency changed. We have changed. We have become accustomed to elements of a security state such as massive surveillance and executive authority without judicial oversight. We have finally answered a question left by Benjamin Franklin in 1787, when a Mrs. Powel confronted him after the Constitutional Convention and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His chilling response: “A republic, if you can keep it.”
We appear to have grown weary of the republic and traded it for promises of security from a shining political personality. Somewhere, Nixon must be wondering how it could have been this easy.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
USA Today March 26, 2013
OUR STUDENTS DESERVE DUE PROCESS
Six years ago, prosecutors finally dropped rape charges against former Duke University lacrosse players accused of attacking a stripper. Perhaps the greatest offense against the players was not the false accusation by Crystal Mangum, but the assumption by Duke that the students and anyone associated with them were guilty. In the wake of this scandal, many schools learned a hard lesson from Duke’s bad publicity and sought to protect students and faculty from a future rush to judgment. However, school efforts to reinforce due process protections have run into opposition from an unexpected source: the Obama administration.
Last year, universities received a seemingly friendly “Dear Colleague” letter from the administration demanding that schools actually reduce due process protections in disciplinary hearings for accused students and faculty in sexual misconduct cases. If they did not, the letter warned, they could lose federal funding and face discrimination charges discrimination. The helpful “colleague” on the other side of the letter was Russlynn Ali, then assistant secretary for civil rights at the Department of Education. She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.”
Ali just resigned, providing an opening for the Obama administration to reconsider. That’s overdue because the interpretation of due process as a form of discrimination has shaken the academic community, which is deeply divided on whether to yield to the overt threats. It is a Faustian bargain for academics: Either strip students and faculty of basic due process protections or be declared discriminatory.
In the past, many schools have required significant evidence to find students or faculty guilty, often a “clear preponderance” or “clear and convincing evidence.” These standards require less than the criminal “beyond the reasonable doubt” standard but still a 75% or 80% certainty of guilt. The administration, however, demands that schools adopt the lowest evidentiary standard short of a presumption of guilt — “preponderance of the evidence,” just slightly above a 50-50 determination.
Because many of these cases involve the classic “he-said-she-said” situation, they come to the university as an even split based on opposing testimony. Add in the fact that many of these cases involve drinking, and the “preponderance” standard becomes a recipe for injustice. Even the slightest evidence can dictate the result and tends to favor conviction.
While this low standard is used in some civil cases, the accused is generally afforded other protections that the Obama administration directive strips from the accused. For instance, the directive discourages schools from allowing a student or faculty member to question the accuser. And schools have seized on that. Last month, a Georgia college student was expelled after rape allegations without the opportunity to confront the accuser or even, the student alleges, know the names of other witnesses in the case. After a judge halted the expulsion, the parties reached an “undisclosed resolution.”
The Supreme Court has insisted in criminal cases that the right to confront the accuser must be honored even when a court believes that the victim’s testimony is highly credible. The court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.” Yet, the administration insists that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.”
Adding to the unfairness is the fact that many schools like George Washington, where I teach, do not even allow for legal representation of students in these proceedings. Likewise, most do not account for potential criminal prosecutions. University investigations can undermine the rights of criminal defendants by forcing them into a process without other constitutional protections that the accused have in criminal court, such as the right to remain silent. Thus, evidence that would be viewed as improper, if produced by prosecutors in criminal court, can be admitted if generated first by a university.
Like other schools, George Washington does not even define the offense of “sexual violence.” Thus, a student can be convicted of an undefined offense under the lowest standard of proof without either confrontation or active counsel. Worse yet, the lesser offense of “sexual harassment” is defined as including the undefined “sexual violence” — adding a mind-numbing circularity.
Equally disturbing is the common rationale cited by those demanding these changes: money. As recently stated in an article by the respected Chronicle of Higher Education, the lowering of the burden of proof “[f]irst . . . protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money.” This common rationale puts money squarely before the merits in the priority for discussion.
The Obama administration has created the perfect Potemkin village — a legal façade with the outward appearance of a due process without its substance. Weighting the system to guarantee more convictions is not combating sexual violence or harassment. It is achieving a statistical success rather than the harder process of assuring justice for both alleged victims and the accused. Students are not statistics and deserve more than the equivalent of a coin toss with two lives in the balance.
Published December 6, 2012
END THE ELECTORAL COLLEGE
In each case, the outcome was decided by the majority of voters in their country. Such direct democracy is a foreign concept in the USA, where we require neither direct voting nor a majority to lead our nation. The reason is an arcane institution: the Electoral College.
In the U.S., presidents are not elected by the people but by 538 “electors” who award blocks of votes on a state-by-state basis. The result is that presidents can be — and have been — elected with fewer votes than their opponents. Indeed, various presidents have taken office with less than 50% of the vote. The question is whether a president should be elected by a majority of voters of at least one free country before he can call himself the leader of the free world.
The Electoral College is a relic of a time when the Framers believed that average people could not be trusted with selecting a president, at least not entirely. This was consistent with a general view of the dangers of direct voting systems. Until 1913, U.S. senators were elected not by their constituents but by the state legislators. When we finally got rid of that provision with the 17th Amendment, we failed to change its sister provision in Article II on the indirect election of presidents.
Notably, while James Madison agreed that direct election of the president would be superior, there was one primary obstacle to pursuing this option in the Constitutional Convention: slavery. Madison noted that the North-South divide presented an obstacle of a “serious nature” to direct democracy. He concluded that the use of electors that gave each state a set number of votes “seemed on the whole to be liable to fewest objections.” Now slavery is gone, yet the Electoral College remains.
We have retained this dysfunctional institution even after the calamity of the 2000 election, in which a few “hanging chads” in Florida determined the outcome. Not only did the college effectively negate half of the votes in Florida by giving all the electoral votes to George W. Bush, but it also delivered the entire election to him despite his loss in the national popular vote. Direct elections lessen such controversies by counting the votes of all Americans equally and directly. Though such vote counting controversies could continue, the size of the nation usually guarantees that the popular vote is rarely in doubt. Even in that “close” election, Bush trailed by more than a half million votes.
The greatest irony of the Electoral College is that it does precisely the opposite of what the Framers intended: Rather than encouraging presidential candidates to take small states seriously, it results in turning most states into near total irrelevancies. With our two-party monopoly on power in the United States, candidates spend little time, if any, in states that are clearly going to go for the other party — or even for their own party. Thus, there is little reason for President Obama to go to Utah or for Mitt Romney to go to Vermont. The result is that elections are dominated by swing states while campaigns become dominated by the issues affecting those states.
Thus, while the majority of Americans support tougher immigration laws, both candidates this year are struggling to adopt new policies to capture swing states with large Latino populations. Whatever the merits of the immigration debate, the campaign looks as if it is for the United State of Florida as opposed to the country as a whole. The irony is palpable given the original desire of Madison to use the college to avoid the “mischiefs of faction.” He did not want presidents to be effectively captured by factional or insular interests. However, that is precisely what has occurred: The interests of the majority of country are subservient to the insular interests of key voting blocks in swing states.
The reason that the Electoral College is still with us is that it is a critical protection for the two-party monopoly on power in the USA. The Democrats and Republicans effectively keep presidential candidates of the opposing party out of their states — deterring the expenditure of time and money in organizing these states. Opposing candidates and parties face even greater obstacles because most voters view the result as irrelevant to the outcome of elections.
Ultimately, the Electoral College should be rescinded as a fundamentally undemocratic institution. John Quincy Adams was elected by just 32% of the popular vote. He is among the 15 presidents who have taken office with less than 50% of the vote:
Grover Cleveland (twice)
Woodrow Wilson (twice)
Bill Clinton (twice)
George W. Bush.
Some presidents like Bush were elected not only by less than a majority but also with fewer votes than his opponent. For the many Americans who are unhappy with this political system and want change, a key and obtainable reform is a constitutional amendment requiring the direct and majority election of presidents in either a general or, if necessary, a runoff election. A president represents all Americans, and he or she should be elected by the vote of citizens as Americans, as a whole.
It is time for the United States to embrace true democracy. It is time to kill the Electoral College.
Published October 2012
SUPREME FAILURE: ANITA ALVAREZ AND HER CAMPAIGN TO CRIMINALIZE CITIZEN MONITORING OF POLICE
Cook County State’s Attorney Anita Alvarez ended up empty-handed last week — and all of Chicago can celebrate. Alvarez lost a U.S. Supreme Court mission that would likely surprise most citizens of this progressive city Chicagoans: to strip them of their First Amendment rights and to allow her to prosecute citizens for videotaping police in public.
Alvarez’s position was denounced as extremist by a federal appellate court and civil libertarians around the country. However, she refused to yield to the courts, to the Constitution or to the public — making Chicago a leader of a national effort to bar the use of a technology widely considered the single most important deterrent of police abuse. Alvarez is not alone in this ignoble mission, and this threat to the public is not likely to pass with her latest defeat.
It was 21 years ago that a citizen filmed the savage beating of Rodney King by Los Angeles police officers after a high-speed car chase. The most chilling fact in the King case was that, absent the videotape, this would have likely been dismissed as another unsupported claim of police abuse.
Since that time, numerous acts of abuse by police have been captured by citizens — exposing false charges and excessive force often in direct contradiction to sworn statements of officers. These cases have increased exponentially with the explosion of cellphones with videotaping capabilities. Chicago has seen a long litany of such cases.
Last month, the Chicago Police Department settled a case with an alleged gang member who alleged that Officers Susana La Casa and Luis Contreras took him to the turf of a rival gang and allowed Latin King gang members to taunt and threaten him. It is the type of case that would ordinarily be dismissed on the word of the officers, who allegedly gave false statements regarding the case. Lawyers for Miguel “Mikey” Castillo, however, found a videotape from a witness showing the officers laughing as Castillo cowered in their police SUV. It is the type of act that Alvarez argued should have been a crime — not the police harassment (which her office declined to prosecute) but the filming of the police harassment.
The same is true for the still-pending case of Brad Williams, who filed a lawsuit against the Chicago Police Department in 2011after he claimed to have been beaten by police in response to his filming an officer holding and dragging a man outside his squad car. Williams was told by officers that it was illegal to film police in public — the position advocated by Alvarez.
Loyola University Chicago professor Ralph Braseth was told the same thing in November 2011. Braseth was also videotaping an arrest as a journalist when he was detained and told that he was committing a crime. He was let go but not before a Chicago police officer deleted his video.
There remains a striking contradiction in the policies of Chicago officials. While Alvarez and others are pushing for the arrest of citizens who photograph police in public, Chicago authorities are also pushing for more and more cameras to videotape citizens in public. Thus, an American Civil Liberties Union report estimated more than 10,000 surveillance cameras are linked throughout the city to allow police to monitor citizens while Alvarez is trying to imprison people who monitor police in public.
When the latest case went before the U.S. 7th Circuit Court of Appeals, the panel described Alvarez’s arguments as “extreme” in arguing that citizens filming police in public is “wholly unprotected by the First Amendment.” Alvarez did not have to adopt such an extreme position and she did not have to seek a reversal from the Supreme Court. Yet, she sought to overturn a decision by Judge Diane Sykes that chastised her for disregarding “the First Amendment’s free-speech and free-press guarantees.”
Alvarez, however, was not without one supporter on the court. Judge Richard Posner admonished the ACLU lawyer who sought to defend the rights of citizens and journalists. In oral arguments, Posner interrupted the ACLU lawyers after just 14 words stating, “Yeah, I know. But I’m not interested, really, in what you want to do with these recordings of people’s encounters with the police.” He then stated openly what is usually left unstated by those seeking to jail citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers. … I’m always suspicious when the civil liberties people start telling the police how to do their business.”
Alvarez and others appear to share the same suspicion and hostility. Across the country, police and prosecutors continue to arrest or harass citizens who film police — even after numerous courts have stated that such filming is a protected constitutional right.
The latest such case occurred last week in California. Daniel J. Saulmon was filming an arrest when he was stopped by a police officer demanding his identification and an explanation — neither of which Saulmon was inclined to give since he was engaged in a clearly lawful activity. The officer promptly arrested him, and he was held in jail for four days — ultimately charged with resisting, delaying and obstructing an officer. The video shows Saulmon standing at a distance from the arrest and never resisting in any way.
As a native Chicagoan, it was distressing to see the Cook County state’s attorney seek the reduction of guarantees of free speech and free press. With a crime wave sweeping the city and daily murders recounted in national media, one would think that Alvarez would have a few things more important to attend to than stripping away the rights of the citizens that she swore to protect.
Jonathan Turley is a law professor at George Washington University and editor-in-chief of the legal blog jonathanturley.org.
Date: Chicago Tribune, December 2, 2012
Free speech is dying in the Western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony.
In the face of the violence that frequently results from anti-religious expression, some world leaders seem to be losing their patience with free speech. After a video called “Innocence of Muslims” appeared on YouTube and sparked violent protests in several Muslim nations last month, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.”
It appears that the one thing modern society can no longer tolerate is intolerance. As Australian Prime Minister Julia Gillard put it in her recent speech before the United Nations, “Our tolerance must never extend to tolerating religious hatred.”
A willingness to confine free speech in the name of social pluralism can be seen at various levels of authority and government. In February, for instance, Pennsylvania Judge Mark Martin heard a case in which a Muslim man was charged with attacking an atheist marching in a Halloween parade as a “zombie Muhammed.” Martin castigated not the defendant but the victim, Ernie Perce, lecturing him that “our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.”
Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.
This was evident in recent days when courts in Washington and New York ruled that transit authorities could not prevent or delay the posting of a controversial ad that says: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”
When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply because it could upset some Metro riders, the ruling prompted calls for new limits on such speech. And in New York, the Metropolitan Transportation Authority responded by unanimously passing a new regulation banning any message that it considers likely to “incite” others or cause some “other immediate breach of the peace.”
Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”
The new restrictions are forcing people to meet the demands of the lowest common denominator of accepted speech, usually using one of four rationales.
Speech is blasphemous
This is the oldest threat to free speech, but it has experienced something of a comeback in the 21st century. After protests erupted throughout the Muslim world in 2005 over Danish cartoons depicting the prophet Muhammad, Western countries publicly professed fealty to free speech, yet quietly cracked down on anti-religious expression. Religious critics in France, Britain, Italy and other countries have found themselves under criminal investigation as threats to public safety. In France, actress and animal rights activist Brigitte Bardot has been fined several times for comments about how Muslims are undermining French culture. And just last month, a Greek atheist was arrested for insulting a famous monk by making his name sound like that of a pasta dish.
Some Western countries have classic blasphemy laws — such as Ireland, which in 2009 criminalized the “publication or utterance of blasphemous matter” deemed “grossly abusive or insulting in relation to matters held sacred by any religion.” The Russian Duma recently proposed a law against “insulting religious beliefs.” Other countries allow the arrest of people who threaten strife by criticizing religions or religious leaders. In Britain, for instance, a 15-year-old girl was arrested two years agofor burning a Koran.
Western governments seem to be sending the message that free speech rights will not protect you — as shown clearly last month by the images of Nakoula Basseley Nakoula, the YouTube filmmaker, being carted away in California on suspicion of probation violations. Dutch politician Geert Wilders went through years of litigation before he was acquitted last year on charges of insulting Islam by voicing anti-Islamic views. In the Netherlandsand Italy, cartoonists and comedians have been charged with insulting religion through caricatures or jokes.
Even the Obama administration supported the passage of a resolution in the U.N. Human Rights Council to create an international standard restricting some anti-religious speech (its full name: “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence Against, Persons Based on Religion or Belief”). Egypt’s U.N. ambassador heralded the resolution as exposing the “true nature” of free speech and recognizing that “freedom of expression has been sometimes misused” to insult religion.
At a Washington conference last yearto implement the resolution, Secretary of State Hillary Rodham Clinton declared that it would protect both “the right to practice one’s religion freely and the right to express one’s opinion without fear.” But it isn’t clear how speech can be protected if the yardstick is how people react to speech — particularly in countries where people riot over a single cartoon. Clinton suggested that free speech resulting in “sectarian clashes” or “the destruction or the defacement or the vandalization of religious sites” was not, as she put it, “fair game.”
Given this initiative, President Obama’s U.N. address last month declaring America’s support for free speech, while laudable, seemed confused — even at odds with his administration’s efforts.
Speech is hateful
In the United States, hate speech is presumably protected under the First Amendment. However, hate-crime laws often redefine hateful expression as a criminal act. Thus, in 2003, the Supreme Court upheld the conviction of a Virginia Ku Klux Klan member who burned a cross on private land. The court allowed for criminal penalties so long as the government could show that the act was “intended to intimidate” others. It was a distinction without meaning, since the state can simply cite the intimidating history of that symbol.
Other Western nations routinely bar forms of speech considered hateful. Britain prohibits any “abusive or insulting words” meant “to stir up racial hatred.” Canada outlaws “any writing, sign or visible representation” that “incites hatred against any identifiable group.” These laws ban speech based not only on its content but on the reaction of others. Speakers are often called to answer for their divisive or insulting speech before bodies like the Canadian Human Rights Tribunal.
This month, a Canadian court ruled that Marc Lemire, the webmaster of a far-right political site, could be punished for allowing third parties to leave insulting comments about homosexuals and blacks on the site. Echoing the logic behind blasphemy laws, Federal Court Justice Richard Mosley ruled that “the minimal harm caused . . . to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.”
Speech is discriminatory
Perhaps the most rapidly expanding limitation on speech is found in anti-discrimination laws. Many Western countries have extended such laws to public statements deemed insulting or derogatory to any group, race or gender.
For example, in a closely watched case last year, a French court found fashion designer John Gallianoguilty of making discriminatory comments in a Paris bar, where he got into a cursing match with a couple using sexist and anti-Semitic terms. Judge Anne-Marie Sauteraud read a list of the bad words Galliano had used, adding that she found (rather implausibly) he had said “dirty whore” at least 1,000 times. Though he faced up to six months in jail, he was fined.
In Canada, comedian Guy Earle was charged with violating the human rights of a lesbian couple after he got into a trash-talking session with a group of women during an open-mike night at a nightclub. Lorna Pardysaid she suffered post-traumatic stress because of Earle’s profane language and derogatory terms for lesbians. The British Columbia Human Rights Tribunal ruled last year that since this was a matter of discrimination, free speech was not a defense, and awarded about $23,000 to the couple.
Ironically, while some religious organizations are pushing blasphemy laws, religious individuals are increasingly targeted under anti-discrimination laws for their criticism of homosexuals and other groups. In 2008, a minister in Canada was not only forced to pay fines for uttering anti-gay sentiments but was also enjoined from expressing such views in the future.
Speech is deceitful
In the United States, where speech is given the most protection among Western countries, there has been a recent effort to carve out a potentially large category to which the First Amendment would not apply. While we have always prosecuted people who lie to achieve financial or other benefits, some argue that the government can outlaw any lie, regardless of whether the liar secured any economic gain.
One such law was the Stolen Valor Act, signed by President George W. Bush in 2006, which made it a crime for people to lie about receiving military honors. The Supreme Court struck it down this year, but at least two liberal justices, Stephen Breyer and Elena Kagan, proposed that such laws should have less of a burden to be upheld as constitutional. The House responded with new legislation that would criminalize lies told with the intent to obtain any undefined “tangible benefit.”
The dangers are obvious. Government officials have long labeled whistleblowers, reporters and critics as “liars” who distort their actions or words. If the government can define what is a lie, it can define what is the truth.
For example, in Februarythe French Supreme Court declared unconstitutional a law that made it a crime to deny the 1915 Armenian genocide by Turkey — a characterization that Turkey steadfastly rejects. Despite the ruling, various French leaders pledged to pass new measures punishing those who deny the Armenians’ historical claims.
The impact of government limits on speech has been magnified by even greater forms of private censorship. For example, most news organizations have stopped showing images of Muhammad, though they seem to have no misgivings about caricatures of other religious figures. The most extreme such example was supplied by Yale University Press, which in 2009 published a book about the Danish cartoons titled “The Cartoons That Shook the World” — but cut all of the cartoons so as not to insult anyone.
The very right that laid the foundation for Western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed imflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.
As in a troubled marriage, the West seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Let it not be said that President Obama does not keep his promises.
As he prepared to accept his nomination for re-election last week, the president made good on a promise he made at the beginning of his term: No CIA officers will be prosecuted for torture. Attorney General Eric Holder quietly announced before the convention that the last two torture investigations would close (like all the prior investigations) without any charge. As a virtual afterthought, the Justice Department added that it would not address the “propriety of the examined conduct.” The “impropriety” involved two suspects who died under torture by CIA officials.
For those still infatuated with Obama, the announcement was the final triumph of “hope” over experience. Since Obama ran on a civil liberties platform, many expected an independent torture investigation as soon as he took office. After all, waterboarding is one of the oldest forms of torture, pre-dating the Spanish Inquisition (when it was called tortura del agua). It has long been defined as torture by both U.S. and international law, and by Obama himself. Torture, in turn, has long been defined as a war crime, and the United States is under treaty obligation to investigate and prosecute such crimes.
However, such a principle did not make for good politics. Accordingly, as soon as he was elected, Obama set out to dampen talk of prosecution. Various intelligence officials and politicians went public with accounts of the Obama administration making promises to protect Bush officials and CIA employees from prosecution.
‘Order is an order’
Though the White House denied the stories, Obama later gave his controversial speech at the CIA headquarters and did precisely that. In the speech, he effectively embraced the defense of befehl ist befehl (“an order is an order”) and, in so doing, eviscerated one of the most important of the Nuremburg principles. Obama assured the CIA that employees would not be prosecuted for carrying out orders by superiors. This was later affirmed by Holder’s Justice Department, which decided that employees carrying out torture were protected because they followed orders. The administration then decided that those who gave the orders were protected because they secured facially flawed legal opinions from the Justice Department. Finally, the Justice Department decided not to charge its own lawyers who gave those opinions because they were their … well …opinions.
This, of course, still left two inconvenient corpses in Iraq and Afghanistan. In 2002, Gul Rahman was grabbed in Pakistan while seeing a doctor who is the son-in-law of an Afghanistan warlord. He was taken by the CIA to the infamous Salt Pit, a former brick factory north of Kabul. He was beaten by guards, stripped and shackled to a cement wall in near freezing temperatures. He froze to death overnight. The CIA officer in charge of the prison who ordered the lethal abuse has been promoted, according to the Associated Press and The Washington Post.
The second torture case was that of Manadel al-Jamadi, who died in 2003 in Iraq’s infamous Abu Ghraib prison. Al-Jamadi’s face was featured in pictures with smiling U.S. troops posed with his dead body — giving the thumbs up sign. A CIA official had interrogated al-Jamadi by suspending him from a barred window by his wrists, which were bound behind his back. The CIA interrogator, Mark Swanner, continued to demand answers even when al-Jamadi stopped responding. Swanner accused him of “playing possum” and ordered him to be repositioned for more interrogation, according to a New Yorker account. The guards finally convinced Swanner that the man was deceased. Al-Jamadi’s death was officially ruled a homicide.
Not only have people like the commandant at the Salt Pit been promoted, but various CIA officials associated with the abuse of detainees have also been promoted under President Obama. Likewise, the lawyers responsible for those now rejected legal opinions have been promoted. One of the most notorious, Jay Bybee, was even given a lifetime appointment as a federal judge in California.
We have gone from prosecuting torture as a war crime after World War II to treating allegations of torture as a “question of propriety” under Obama. Hundreds of officials, including President Bush, were involved. People died in interrogation. High-ranking CIA officials admitted that they destroyed evidence of torture to keep it from being used in any later prosecutions. Yet, after a years-long investigation, not a single CIA official will be charged with a single crime connected to the program. Not even a misdemeanor or a single bar referral for an attorney. Well, no one except former CIA official John Kiriakou, who is awaiting trial on criminal charges for disclosing information on the torture.
After World War II, political philosopher Hannah Arendt coined the phrase “the banality of evil” to describe those who committed war crimes. The Obama administration now can add the “impropriety of torture” to our lexicon. The image of a man beaten, stripped and frozen to death in a CIA prison is not nearly as unnerving as a nation that stood by and did nothing about it. We have become a nation of dull-eyed pedestrians watching as our leaders strip away the very things that distinguish us from our enemies. With our principles gone, we are left with only politics and, of course, our sense of propriety.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Just as some people go to Nascar races to watch the crashes, I admit I watch the Olympics in part for the rules challenges. They are a legal event in which world class athletes often find themselves faced with subpar procedures that strip them of points and sometimes medals.
The rules are a hodgepodge of arbitrary judgments established by dozens of sporting bodies, but the Olympics has a long history of clinging to them despite the ability to adopt better procedures.
Here are a few places where a new Olympic legal team might begin an overhaul:
•The cashless challenge. Some sports still require cash for a challenge. For example, when Japanese gymnast Kohei Uchimura stumbled off the pommel horse in the final event of the men’s team competition, the Japanese challenged and insisted that the fall was actually part of his dismount. Before the successful challenge could be heard, the Japanese had to scramble for cash.
A similar scene occurred in the fencing competition with South Koreans running around frantically hitting people up for cash. The image of coaches crouching around judges like crapshooters with wads of cash in hand is grotesquely out of place in the Olympics. Even if the Games insist on charging for challenges, it is hard to see why nations should not be trusted with a credit line or why payment should be demanded for challenges.
•Equal treatment. The Olympics continue to allow different rules to apply to men and women without any rational basis. For example, Olympic rules state that a female gymnast on vault can stop or break a run before touching the springboard without a deduction as long as she returns to the end of the runway within 30 seconds. But a male gymnast will receive a score of 0 for aborting a vault. Thus, two female gymnasts in the finals this year stopped their runs and were given the option of a second run without deductions — an option denied to their male counterparts.
Conversely, in diving, men are allowed to repeat one of their categories of dives while women are not.
In addition to its own editorials, USA TODAY publishes a variety of opinions from outside writers. On political and policy matters, we publish opinions from across the political spectrum.
Roughly half of our columns come from our Board of Contributors, a group whose interests range from education to religion to sports to the economy. Their charge is to chronicle American culture by telling the stories, large and small, that collectively make us what we are.
This might reflect another difference: Men must complete six dives while women must complete five. Why? These women are amazing athletes capable of the same number of dives as men.
•Justice is blind. The Olympics often come across as the last refuge of the world’s troglodytes resisting the simplest of technological advances. There is no greater example than the refusal of some sports to use instant replay. Last week at a critical point in the men’s volleyball competition, the Americans hit a ball that the Italians thought was out but the judge ruled for the Americans. NBC immediately confirmed that the ball was out. (Another bad call cost Russia a set against Bulgaria). However, the volleyball officials refuse to use instant replay, so a clearly unearned point was given to the United States.
Likewise, soccer officials have long barred the use of the technology. In the 2010 World Cup, referees refused to award a clearly good goal to England in its loss to Germany. Just last month, FIFA approved the use of goal-line technology for the 2014 World Cup, but it is still not mandated in the Olympics.
Other sports that resist technology include swimming, where officials cannot use underwater video available to television viewers. Thus, despite objections to an alleged illegal “dolphin” kick by South Africa’s Cameron van der Burgh, he was able to collect the gold medal because judges cannot use underwater video technology.
The absurdities combined at the fencing competition, when Shin Lam thought that she had won her bout against Germany’s Britta Heidemann. But the judges suddenly announced that a time keeper had hit the button one second too early. (The time is rumored to have actually been 0.02 of a second.) Heidemann then used that second to add another touch and win the bout. But before the South Koreans could challenge, they first had to come up with the cash, so the world watched as the coaches ran around frantically trying to bum money for the challenge. A full hour passed as the world watched Shin sobbing and refusing to leave the piste.
This year is the 40th anniversary of the Soviet defeat of the United States at the 1972 Olympics in basketball. In that game, the United States thought it had won 50-49 when Soviet coaches objected that they had demanded a time out in the final seconds.
Ultimately, FIBA Secretary General Renato William Jones (who was watching the game) came down and overruled the referees and ordered an additional three seconds. Yet, the Soviets already used the three seconds due to an error in timing and, more important, Jones had no authority to issue any order of any kind. The Soviets scored a last second basket and won the gold. The U.S. team voted unanimously to refuse the silver medal.
None of this is meant to suggest the appearance of a litigation team walking at the opening ceremonies or a new ambulance-chasing event. Nonetheless, it is time to allow a different team to look at Olympic procedures when things go badly.
AUGUST 13, 2012
Et tu, Roberts
The Supreme Court’s blockbuster health care ruling caused a spasm of celebration and recrimination around the country Thursday as the Affordable Care Act was upheld on a 5-4 vote. In reality, the case was never really about health care but federalism — the relative authority of the federal government vs. the state.
I support national health care, but I oppose the individual mandate as the wrong means to a worthy end. Indeed, for federalism advocates, the ruling reads like a scene out of Julius Caesar— a principal killed by the unseen hand of a long-trusted friend. Brutus, in this legal tragedy, was played by Chief Justice John Roberts.
The opinion starts out well. Roberts defends federalism by ruling that the administration exceeded its authority under the commerce clause. Just as many readers were exalting in the affirmation of federalism, however, Roberts struck a deadly blow by upholding the individual mandate provision as an exercise of tax authority. Federalism rose and fell so fast it didn’t have time to utter, “Et tu, Roberts?”
Roberts joined the four liberal justices in upholding the law. He clearly believed that the law was constitutional, and he refused to yield to the overwhelming public pressure. Indeed, he must have known that people would view this as a betrayal of states’ rights, but he stuck with his honest view of the Constitution.
None of that will diminish the sense of betrayal. After all, Brutus acted for the best reasons, too. The health care case was viewed as the final stand for federalism. If the top court could make a federal issue out of a young person in Chicago not buying health insurance, it was hard to imagine any act or omission that would not trigger federal authority. Roberts agreed that this was beyond the pale of federalism: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
But no sooner had Roberts proclaimed his love for federalism than he effectively killed it. Roberts held that the individual mandate still fell squarely within the taxing authority of Congress. If so, all those “broccoli” questions asked by Roberts and other justices simply move over to the tax side. If Congress can “tax” people for not having health insurance, how about taxes on people who don’t have cellphones (as Roberts asked)? Just as there was no clear limiting principle in the commerce clause debate, there is a lack of such a principle in the tax debate. Instead, Roberts simply says the individual mandate is supported by a “functional approach” that has long allowed federal taxes to “seek to influence conduct” by citizens.
Roberts did rule that states could not be threatened with the loss of Medicaid funds if they didn’t want to be part of the program. That was an unexpected protection for the states facing threats from Congress. But this still leaves citizens of every state subject to the penalties of the federal government for failing to get insurance. Moreover, in mandating the right to opt out, Roberts rewrote the law, precisely what most justices didn’t want to do. Before the law was enacted, Congress refused to add an opt-out provision. After the justices complained in oral arguments that they did not understand the massive law, this judicial amendment could increase health care costs and undermine the uniform national character of the program.
Given such problems, President Obama might have been better off losing before the court than accepting this victory from the hands of Roberts. In the end, the court’s decision could be viewed as a success only to the extent that a crash landing is still considered a landing.
It is hard to see who will be the ultimate winner from this decision. But the biggest loser is federalism. Roberts lifted it up only to make it an exquisite corpse. In that sense, the decision reads like the funeral speech of another character in Julius Caesar. To paraphrase Mark Anthony, Roberts came to bury federalism, not to praise it.
June 28, 2012
A BIGGER AND BETTER SUPREME COURT
This week, the country awaits the blockbuster ruling of the supreme court on the future of national healthcare in the United States. Citizens have waited anxiously every Monday morning for weeks for the next pronouncement – whether on immigration, free speech or, now, healthcare – to be handed down from the highest court. It has left many uneasy about the hold that such a small number of unelected jurists have on the nation.
Once again, many important decisions were the result of a court of one – 5-4 decisions, with “swing Justice” Anthony Kennedy deciding the issue for the nation. Healthcare is just one of a litany of cases that are reshaping the country in an image dictated often by just five members of the court. This has included sweeping changes in the political process from the Bush v Gore decision in 2000 (where the supreme court effectively chose the next president), to the Citizen’s United case (where the court struck down campaign finance limits for corporations).
Also expected on Thursday is the decision in a free speech case, which many civil libertarians fear could deliver a huge blow to free speech in the United States. It is also expected to be a close vote.
While I support national healthcare, I have long opposed Obamacare on federalism grounds – denying states their constitutionally protected authority over such matters. Most experts are now predicting that the conservatives will likely carry the day in striking down critical parts of the law, or the law in its entirety. Despite being on the expected winning side of that particular case, I still believe that it is wrong for such a small group of jurists to make the decision for the country as a whole. In my view, the supreme court is demonstrably and dangerously too small.
Over ten years ago, I proposed a reform of the supreme court that would expand it to 19 members. A review of high courts around the world shows that most large nations have larger courts that avoid the concentration of power in the hands of so few jurists: Germany has 16, Japan 15, the United Kingdom 12, India 31, and Israel 15. Some use far greater numbers of justices who are divided among different divisions, like the 74 jurists in the Spanish high court or the 124 judges and deputy judges in France.
Again, while these systems have important structural differences, they do not have the concentration of power that characterizes the US supreme court. Canada does have a court that is the same size as the US supreme court, but the court has a mandatory retirement age of 75 that guarantees a higher turn over rate.
In drafting the US Constitution, the framers relied heavily on historical and contemporary models in other countries. So, today, a review of the function of larger courts around the world offers a better model for the modern court. The larger size of these courts does not produce administrative problems, while they allow greater diversity in experience and viewpoints.
The constitution itself does not specify the number of justices, and that number has actually fluctuated through the years. The nine-member court is a product not of some profound debate or study, but of pure happenstance. In fact, when the court first convened in 1790 in New York, at the Royal Exchange Building, it had six members. After that time, the size of the court expanded and shrank – largely with the number of federal circuits. Since justices once “rode circuit” and actually sat as judges in lower courts, Congress would add a justice when it added a circuit – or reduce the court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of a court.
Ever since the supreme court rested at nine members, we have repeatedly had problems of 5-4 splits, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. We often find ourselves captive to the idiosyncratic views of a couple of justices’ views on privacy, or federalism, or free speech.
A national poll this month showed the public overwhelmingly opposed to how the court functions. Only 44% of citizens approved of how the court operates and 60% believe that “appointing supreme court justices for life is a bad thing because it gives them too much power.”
The current controversy could not come at a more symbolic moment. This year is the 75th anniversary of the famous “court packing” effort of Franklin Delano Roosevelt. As today, the country in 1937 was in the midst of a profound economic crisis, and Roosevelt was saddled with four conservative justices – known as “the Four Horsemen” – who opposed his New Deal legislation. Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices on the court. The crisis was averted when Roberts voted to support a critical New Deal case and “Horseman” Justice Willis Van Devanter retired – the famous “switch in time that saved nine” moment for the court. Roosevelt, though, may have had the right idea, for the wrong reason.
We can certainly debate the optimal number for the court, but we should finally have that debate after over 200 years. I believe a 19-member court would be ideal – roughly the average size of a circuit court. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges are consistently the swing votes on all issues when they sit “en banc” (or as a whole).
While appellate courts generally sit in three-judge panels, they sit as an en banc court in cases of great significance – the highest level of appeal short of the supreme court itself. In such cases, they function well as a whole and show greater diversity of opinion and experience. More importantly, the power of the judges themselves is diluted by the number. Experience has shown that a 19-member court is small enough to be manageable and would not present a significant burden in terms of confirmations.
Just because we settled on nine arbitrarily does not mean that any number is as good as any other. It is not enough to simply retort “why not 29 or 99?” One could just as easily ask “why not three or six?” The point is that we trying to decide on the best size for the court and should be able to look at other models objectively.
Both the recent polls and proposed reforms reflect a common concern that nine people should not wield such concentrated and sclerotic power. Even if we were to accept an elite court of just nine, these would not be the nine justices that most legal experts would choose. While clearly intelligent people, most justices are selected for their confirmability – a process that tends to favor formula nominees with a narrow range of experience and a short paper trail. The irony is that, because there are so few positions, confirmation fights have become increasingly bitter, so presidents have become increasingly risk-adverse. The result is that nominees are selected because they have never said or written anything remotely provocative – or even interesting. The chances that we could have again a Louis Brandeis or Joseph Story on the supreme court in the current system would be, at best, accidental.
If Congress ordered the proposed expansion, we’d get to a bench of 19 gradually, with no president allowed to appoint more than two new justices in a term. Once fully staffed, the court would have a more regular turnover. This would allow a broader range of diversity and more consistent opportunity for each president to add members to the court.
The expansion of the court might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints heard from lawyers and judges alike is that justices are out-of-touch with the reality of legal practice and judging. A 19-member court would allow two members to sit on an appellate court each year by designation – and so actually be forced to apply the rulings that the court sends down to lower courts. Every five years, justices would be expected to sit as trial or appellate judges. The remaining 17 justices would sit each year to rule on cases.
Our experience with larger courts, both domestically and internationally, suggests that there is a better model for our highest court. Our respect for the court as an institution should not blind us to its flaws. It is time to reform – and expand – the US supreme court.
Guardian – May 27, 2012
THE NINETEEN MEMBER COURT: THE CASE FOR EXPANDING THE UNITED STATES SUPREME COURT
It could all be in the hands of just one justice. After a 14-month fight in Congress and an unprecedented challenge by states to the power of the federal government, the fate of health care in this country is likely to be decided by a 5-4 vote.
The same may be true when the court rules on Arizona’s immigration law and a sweeping free speech case.
As speculation and anxiety grow over these cases, Justice Ruth Bader Ginsburg recently alluded in a speech to “sharp disagreement” in the Supreme Court’s outstanding opinions, while saying that “those who know don’t talk, and those who talk don’t know.”
It’s not terribly productive to try to guess how the court will rule in these cases — we’ll find out soon enough. It’s far more important to ask whether “those who know” are too few and whether “those who don’t know” should demand to reform the court.
The power of the Supreme Court will always be controversial because of the fact that the justices are the final word in legal disputes. Justice Robert Jackson wrote in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” An individual’s view of the court can depend on whose ox is being gored by its decisions; a “judicial activist” is often just a jurist who doesn’t do what you want. Any Supreme Court of any size will always render unpopular decisions. It is supposed to. Federal judges are given life tenure to insulate them from public opinion, so they can protect minority interests and basic liberties.
But how many people should it take to come up with the final word on such questions? Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws. The deep respect for the Supreme Court as an institution often blinds us to its flaws, the greatest of which is that it is demonstrably too small. Nine members is one of the worst numbers you could pick — and it’s certainly not what the founders chose. The Constitution does not specify the number of justices, and the court’s size has fluctuated through the years. It’s time for it to change again.
A national poll this month showed that the public overwhelmingly opposes how the court functions. Only 44 percent of citizens approved of how the court is doing its job, and 60 percent thought that appointing Supreme Court justices for life is a “bad thing” because it “gives them too much power.”
Many people started looking critically at the court’s structure after the Bush v. Gore decision in 2000 — and the power that case gave to just five unelected individuals. One of the most disturbing aspects of the case was not simply that some justices appeared to depart from prior legal views but that the court insisted that its opinion could not be used as precedent and was “limited to the present circumstances.” Five justices did not want their reasoning used for anything other than selecting the next president of the United States.
The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt. As it is today, the country in 1937 was in the midst of an economic crisis, and Roosevelt was saddled with four conservative justices — known as the “Four Horsemen” — who opposed his New Deal. Three justices, called the “Three Musketeers,” were predictably liberal but could not carry the day against the Four Horsemen and Associate Justice Owen Roberts, who was often a swing vote.
Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices. This could have led to a real crisis. But disaster was averted when Roberts voted to support a critical New Deal case and “Horseman” Justice Willis Van Devanter retired — the “switch in time that saved nine” moment for the court. However, Roosevelt may have had the right idea for the wrong reason.
The nine-member court is a product not of some profound debate or study, but pure happenstance. The first Supreme Court had an even more ill-conceived number of justices: six. In fact, when the court first convened in 1790at the Royal Exchange Building in New York, only two justices were present (fortunately, it had no cases on its docket). After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once “rode circuit” and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added. In 1869, the court happened to have nine members for nine circuits. And that is where its size settled.
Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O’Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy.
Some proposed Supreme Court reforms seek to break justices’ hold by rotating these positions among federal judges, while others call for mandatory retirement dates. But I believe that many of the court’s problems come back to its dysfunctionally small size. This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.
While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.
The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench. Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations. Jurists are often selected because they have never said or written anything remotely provocative or even interesting. Many are chosen precisely because they are relative unknowns — such as O’Connor, David Souter, Clarence Thomas and most recently Elena Kagan. Bypassing clear intellectual leaders in courts, the bar and academia, modern nominees are picked as a type of judicial blind date. The chances that we could have a legal virtuoso such as Louis Brandeis or Joseph Story on the court in the current system are at best accidental.
How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover. This would allow greater variety and a more consistent opportunity for each president to name members to the bench. It would also decrease the importance of individual justices hewing so closely to party lines — potentially allowing nominees with broader experience and ideas.
An expansion might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints from lawyers and judges is that the justices are out of touch with the reality of legal practice. Having a 19-member court would allow two justices to sit on an appellate court each year by designation — and be forced to apply the rulings that the Supreme Court sends down.
We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands. The respect that most of us hold for the court should motivate us, not deter us, from reforming it. Just as the philosopher Jeremy Bentham called for “the greatest good for the greatest number,” sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University, where he teaches a course on the Supreme Court.
Washington Post Sunday June 24, 2012
LOOKING FOR SOCIALISM? TRY BUYING A DRINK IN ONE OF AMERICA’S STATE CONTROLLED LIQUOR STORES
Below is today’s column on the continued use of state controls over alcohol in the United States. With the decision this month of Washington States to embrace the free market system and drop controls, citizens in other states are rightfully asking why officials keep this form of central planning, including officials in conservative states that purportedly favor free enterprise over government regulations.
If current political rhetoric is to be believed, we are on the brink of either a Communist or Socialist takeover. Republican leaders and pundits have repeatedly denounced Obama administration programs from health care to bailouts as part of a creeping “socialist agenda,” which appears to mean any centralized control of a market.
What is fascinating is that the warnings over state monopolies omit one of the longest-standing institutions of central planning and control in the U.S.: state liquor boards.
Seventeen states continue to exercise control over liquor as absurd relics from the 1930s. Ironically, there is no better example of the failures of central planning than the “ABC stores” around the country from Alabama to Pennsylvania. Indeed, if Karl Marx were alive and trying to buy Schnapps today, he might reconsider aspects of Das Kapital after dealing with our central alcohol planners.
This month, many people were enthralled with a controversy in Idaho where the State Liquor Division had barred the sale of Five Wives Vodka. The division refused to allow Idahoans to buy the popular vodka because it might be offensive to the Mormon population in the state.
I represented the distiller of the vodka, Ogden’s Own Distillery of Utah, in raising a host of constitutional objections to the enforcement of such religious mores. The state recently agreed to rescind its bar on sales, but the controversy should not pass without some discussion of continued existence of these state monopolies on alcohol sales.
Out with prohibition
Almost 80 years ago, the country repealed the prohibition of alcohol with the 21st Amendment. Many states emerged from prohibition with strict state control boards, but the majority dispensed with this inefficient system years ago. However, millions of Americans continue to live in states that control where and what they can buy in terms of liquor. Beer sales are generally not subject to such controls.
Indeed, the Idaho Division blocked Five Wives Vodka despite the fact that bars in the state serve Polygamy Porter. However, when it comes to liquor, these states stand between the consumer and companies with an army of bureaucrats who add costs and delays for the public.
In the case of Idaho, the division’s director, Jeff Anderson, noted that his staff tasted the vodka and preferred the pricing and quality of other products. Imagine those enlightened folks you meet at the post office and think of them passing judgment on the relative value of different types of alcohol — literally of thousands of products sought by citizens. These alcohol apparatchiks in states such as Idaho sit around and debate whether citizens should be allowed to buy a particular liquor of their choice.
Anderson said they concluded that this vodka was not “something we want to have on our shelf, sitting next to Absolut vodka.” Putting aside the perceived need to protect this Swedish vodka from being seen near Utah vodka, there remains a question of the function and power of these bureaucrats. Like Anderson’s vodka of choice, the bureaucrats consider their power over consumers as absolute.
Most states have gotten rid of these boards and fared well in relying on the market and conventional regulations to protect consumers. Just last month, Washington state embraced the free market and got rid of its state control. Thirty-three states rely on what Adam Smith called the “invisible hand” of the market where consumers choose among products — and the law of supply and demand handles the rest. However, eleven of the seventeen control states — Alabama, Idaho, Maine, New Hampshire, Vermont, Oregon, North Carolina, Ohio, Pennsylvania, Virginia and Utah — exercise direct control over the retail sale and price of liquor, sometimes even owning the ABC stores where it is sold.
Out with the boards
Because I live in Virginia, I have to drive to an ABC store to buy liquor — a store that is insulated from competition, and it shows. Like many government-run enterprises, the place is run with all of the care and concern of your local DMV.
States differ on the rationale for these boards. The Utah Department of Alcoholic Beverage Control, for example, uses its authority “not to promote the sale of liquor” but to “promote moderation and to enforce existing liquor laws.” The heavily Mormon state is famous for imposing arbitrary limits on the sale of alcohol from formerly banning of bars (in favor of “clubs”) to the required use of “Zion curtains” to prevent bartenders from being seen pouring alcohol.
These and other laws seem based on the belief that “for the bureaucrat, the world is a mere object to be manipulated by him.” The man who said that was Marx, a great believer in central control. These states have allowed a fixed bureaucracy to take hold of a market — a self-perpetuating and inefficient middleman in the market.
Ironically, alcohol board heads often defend their decision to bar particular brands because of the limited space that they have at warehouses and stores — ignoring the obvious point that there would be no limitations if they were removed as a chokepoint in the system. Anderson noted that he and his staff have to decide between hundreds of vodkas in choosing what will be made available to consumers while in most states this is the function of the market and consumer choice.
Unlike Marx’s vision, free enterprise is the touchstone of our society. With such free enterprise comes free choice — not simply the freedom to choose between the options approved by the government. Smith in The Wealth of Nations stressed that “it is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.”
Smith could just as well have added that it should also not be from the benevolence of the bureaucrat any more than the brewer — at least in deciding our drink of choice.
June 18, 2012
Courting the Latino Vote?
This week, the Supreme Court will take up one of the most divisive issues facing the country: illegal immigration. At issue is Arizona’s controversial new law calling on state police to enforce federal immigration law by confirming the legal status of suspects and detaining them if found to be in the country illegally.
The case represents the convergence of law and politics, and will have obvious repercussions for the presidential election. Indeed, 12 years after the controversial decision in Bush v. Gore, the ruling could decide the 2012 election if conventional wisdom is accurate. However, this time Democrats might be counting on conservative members of the Supreme Court to secure a win in November.
For Barack Obama, it is a supreme irony: What he needs most on this immigration ruling is a loss. The case involves a difficult question of federal vs. state authority. The Obama administration is arguing that the state law is “pre-empted” by federal law, which leaves no room for individual state enforcement of immigration laws. However, Arizona has pointed out that Congress has acknowledged the right of states to have concurrent immigration laws and questions how a state law enforcing federal law could be in conflict with it.
Beneath this constitutional question, however, lies an explosive social and political controversy. Polls show that Americans overwhelmingly support tougher immigration enforcement. As with the health care law (which, according to polls, is opposed by half of Americans), opposing state enforcement would not appear to be a strong position for the Obama administration as it goes into a tight presidential race with Mitt Romney. Yet, as with health care, the administration pushed the immigration question — directly challenging this and other state laws in federal courts. Supreme Court rulings on both issues will be delivered by the end of this year’s term in late June — just ahead of the political convention season.
The administration’s pitch in court is clearly not tailored for the general public. Though not widely reported, the administration has admitted that its policy on immigration is not to enforce the laws in many cases. Noting that the Arizona law is based on a policy of “maximal ‘attrition through enforcement,’ ” the Obama administration insists its policy is to focus on deporting “dangerous” illegal immigrants as opposed to people who simply entered the country illegally. The problem with this argument is that the federal law does not distinguish between groups of illegal immigrants for purposes of deportation.
More important, many Americans assume that the government is committed to maximum enforcement based solely on illegal status. The Obama administration insists that this is naive and that other considerations must be given preference over enforcement, such as foreign relations and humanitarian concerns.
While Obama appears to honestly believe that maximum enforcement is not the right policy, the case could create a perfect wedge issue in the political campaign. Even more ironic is the fact that it could be the court’s conservatives who secure the victory for Obama.
How a loss would help Obama
Here is how it might play out. Many pundits have emphasized how critical the Latino vote will be to the election. In 2008, Obama won with the help of 67% of Latinos, and his nomination to the Supreme Court of the relatively unknown Sonya Sotomayor was viewed as reflecting the importance of his appeal to both women and Latinos.
The White House has been moving aggressively to secure the advantage. According to a new Wall Street Journal-NBC News poll, Obama leads Romney among Latinos by 69% to 22%. This is particularly important in Florida, which has a large Latino vote and could be the critical state in a close election. The gravitational pull of Florida is immense. Many political experts identify Florida (again) as the state that would likely dictate the outcome, given its high number of electoral votes. Latinos also play a big role in other large states, from Texas to California to Arizona. Obama knows that Romney will probably need to get about 40% of Latino voters to win in 2012.
This brings us back to immigration. The court could give Obama a galvanizing issue shortly before the election. Polls of Latinos show that 85% favor illegal immigrants being allowed to gain legal status and that a majority oppose current enforcement as too strict. Almost half find the very term “illegal immigrant” offensive. So, ironically, Obama’s support among Latinos is likely to be greater if the president loses before the court.
As an institution, the Supreme Court is not unaccustomed to the convergence of law and politics in a case, but it rarely welcomes it. To make matters worse, the immigration case could well be decided by the court’s single swing vote, Justice Anthony Kennedy. Even with his purported Etch-a-Sketch approach to the general election, Romney would find it difficult to flip on the issue and criticize the conservative wing of the court.
As a result, the conservatives on the court could again decide the presidential election, but this time it would be a Democrat who benefits from their ruling. When it comes to immigration politics, nothing succeeds so much as failure.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is on USA TODAY’s Board of Contributors.
April 23, 2012
FREE SPEECH UNDER FIRE
The recent exchange between an atheist and a judge in a small courtroom in rural Pennsylvania could have come out of a Dickens novel. Magisterial District Judge Mark Martin was hearing a case in which an irate Muslim stood accused of attacking an atheist, Ernest Perce, because he was wearing a “Zombie Mohammed” costume on Halloween. Although the judge had “no doubt that the incident occurred,” he dismissed the charge of criminal harassment against the Muslim and proceeded to browbeat Perce. Martin explained that such a costume would have led to Perce’s execution in many countries under sharia, or Islamic law, and added that Perce’s conduct fell “way outside your bounds of 1st Amendment rights.”
The case has caused a national outcry, with many claiming that Martin was applying sharia law over the Constitution — a baseless and unfair claim. But while the ruling certainly doesn’t suggest that an American caliphate has gained a foothold in American courts, it was nevertheless part of a disturbing trend. The conflict in Cumberland County between free speech and religious rights is being played out in courts around the world, and free speech is losing.
Perce was marching in a parade with a fellow atheist dressed as a “Zombie Pope” when he encountered Talaag Elbayomy, who was outraged by the insult to the prophet. The confrontation was captured on Perce’s cellphone. Nevertheless, Martin dismissed the charge against Elbayomy. Then he turned to Perce, accusing him of acting like a “doofus.” Martin said: “It’s unfortunate that some people use the 1st Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended.”
For many, the case confirmed long-standing fears that sharia law is coming to this country. The alarmists note that in January, a federal court struck down an Oklahoma law that would have barred citing sharia law in state courts. But there is no threat of that, and certainly not in Oklahoma, which has fewer than 6,000 Muslims in the entire state. Rather, the campaign against sharia law has distracted the public from the very real threat to free speech growing throughout the West.
To put it simply, Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy and discriminatory language. Ironically, these laws are defended as fighting for tolerance and pluralism.
After the lethal riots over Dutch cartoons in 2005 satirizing Muhammad, various Western countries have joined Middle Eastern countries in charging people with insulting religion. And prosecutions are now moving beyond anti-religious speech to anti-homosexual or even anti-historical statements. In Canada last year, comedian Guy Earle was found to have violated the human rights of a lesbian couple by making insulting comments at a nightclub. In Britain, Dale Mcalpine was charged in 2010 with causing “harassment, alarm or distress” after a gay community police officer overheard him stating that he viewed homosexuality as a sin. The charges were later dropped.
Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal. Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger’s singing “Kung Fu Fighting.” Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one’s own risk.
Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.
In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill’s author responded, “That’s democracy.”
Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: “Democracy … soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.”
Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to “transmit or display an image” online that is likely to “frighten, intimidate or cause emotional distress” to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a “legitimate purpose.” This applies even to postings on Facebook or social media.
Judge Martin’s comments are disturbing because they reflect the same emerging view of the purpose and, more important, the perils of free speech. Martin told Perce that “our forefathers” did not intend the 1st Amendment “to piss off other people and cultures.” Putting aside the fact that you could throw a stick on any colonial corner and hit three people “pissed off” at Thomas Paine or John Adams, the 1st Amendment was designed to protect unpopular speech. We do not need a 1st Amendment to protect popular speech.
The exchange between the judge and the atheist in Mechanicsburg captures the struggle that has existed between free speech and religion for ages. What is different is that it is now a struggle being waged on different terms. Where governments once punished to achieve obedience, they now punish to achieve tolerance. As free speech recedes in the West, it is not sharia but silence that is following in its wake.
Jonathan Turley is a professor of public interest law at George Washington University.
Los Angeles Times, March 9, 2012
On Monday, March 5, Northwestern University School of Law was the location of an extraordinary scene for a free nation. U.S. Attorney General Eric Holder presented President Barack Obama’s claim that he has the authority to kill any U.S. citizen he considers a threat. It served as a retroactive justification for the slaying of American-born cleric Anwar al-Awlaki last September by a drone strike in northeastern Yemen, as well as the targeted killings of at least two other Americans during Obama’s term.
What’s even more extraordinary is that this claim, which would be viewed by the Framers of the U.S. Constitution as the very definition of authoritarian power, was met not with outcry but muted applause. Where due process once resided, Holder offered only an assurance that the president would kill citizens with care. While that certainly relieved any concern that Obama would hunt citizens for sport, Holder offered no assurances on how this power would be used in the future beyond the now all-too-familiar “trust us” approach to civil liberties of this administration.
In his speech, Holder was clear and unambiguous on only one point: “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.” The use of the word “abroad” is interesting because senior administration officials have previously asserted that the president may kill an American anywhere and anytime, including within the United States. Holder’s speech does not materially limit that claimed authority, but stressed that “our legal authority is not limited to the battlefields in Afghanistan.” He might as well have stopped at “limited” because the administration has refused to accept any limitations on this claimed inherent power.
Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.
Of course, the citizens of the United States once consented on a relevant principle when they ratified the Constitution and later the Bill of Rights. They consented to a government of limited powers where citizens are entitled to the full protections of due process against allegations by their government. That is clearly not the type of consent that Holder wants to revisit or discuss. Indeed, he insisted that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.'”
Holder’s new definition of “due process” was perfectly Orwellian. While the Framers wanted an objective basis for due process, Holder was offering little more than “we will give the process that we consider due to a target.” And even the vaguely described “due process” claimed by Holder was not stated as required, but rather granted, by the president. Three citizens have been given their due during the Obama administration and vaporized by presidential order. Frankly, few of us mourn their passing. However, due process appears to have been vaporized in the same moment — something many U.S. citizens may come to miss.
What Holder is describing is a model of an imperial presidency that would have made Richard Nixon blush. If the president can kill a citizen, there are a host of other powers that fall short of killing that the president might claim, including indefinite detention of citizens — another recent controversy. Thus, by asserting the right to kill citizens without charge or judicial review, Holder has effectively made all of the Constitution’s individual protections of accused persons matters of presidential discretion. These rights will be faithfully observed up to the point that the president concludes that they interfere with his view of how best to protect the country — or his willingness to wait for “justice” to be done. And if Awlaki’s fate is any indication, there will be no opportunity for much objection.
Already, the administration has successfully blocked efforts of citizens to gain review of such national security powers or orders. Not only is the list of citizens targeted with death kept secret, but the administration has insisted that courts do not play a role in the creation of or basis for such a list. Even when Awlaki’s family tried to challenge Obama’s kill order, the federal court declared that the cleric would have to file for himself — a difficult task when you are on a presidential hit list. Moreover, any attorney working with Awlaki would have risked being charged with aiding a terrorist.
When the applause died down after Holder’s speech, we were left with a bizarre notion of government. We have this elaborate system of courts and rights governing the prosecution and punishment of citizens. However, that entire system can be circumvented at the whim or will of the president. The president then becomes effectively the lawgiver or lifetaker for all citizens. The rest becomes a mere pretense of the rule of law.
Holder was describing the very model of government the Framers denounced in crafting both the Constitution and Bill of Rights. James Madison in particular warned that citizens should not rely on the good graces and good intentions of their leaders. He noted, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The administration appears to have taken the quote literally as an invitation for unlimited authority for angels.
Of course, even those who hold an angelic view of Obama today may come to find the next president less divine. In the end, those guardian angels will continue to claim to be acting in the best interests of every citizen — with the exception, of course, of those citizens killed by them.
Foreign Policy Magazine, March 6, 2012
THE HUGUELY TRIAL AND THE SEARCH FOR MEANING
The murder trial of George Huguely V was enough to make Nancy Grace hyperventilate in sheer anticipation. Huguely seemed to walk right out of central casting with a formula script for her nightly Murder Menagerie: attractive white girl killed by her equally attractive college star boyfriend shortly before their graduation from a top college. People wanted to know why the University of Virginia senior would kill his ex-girlfriend and fellow student Yeardley Love— trading in his privileged life for a lifetime in jail.
Yet when the verdict came in last week, there were many who expressed disappointment — not just with the verdict of second-degree (rather than first-degree) murder, but also the lack of insight into why Huguely committed this heinous act. The defense seemed intent on leaving that question unanswered. In his opening statement, his lawyer, Francis Lawrence, acknowledged the many questions about his client but insisted that Huguely “is not complicated. He’s not complex. He’s a lacrosse player.” That enigmatic statement did not satisfy the public — and probably not many jurors.
Beyond details of a drinking problem, Huguely would remain a mystery throughout the two-week trial. The defense not only decided to keep Huguely off the stand, but also failed to put on a single witness to speak for him in the sentencing stage. There was little testimony explaining, let alone excusing, his conduct. In the end, the jurors were given less information on Huguely than they would find on an eHarmony profile. “Just another lacrosse player” is not particularly helpful when the jury is looking at a kicked-in door, a history of abuse and a dead ex-girlfriend. It was not surprising, therefore, that Huguely received 26 years rather than the minimum of five years (though still less than the maximum of 40 years).
Martha Stewart lesson
Though many defendants choose not to take the stand for good reasons, it usually weighs against them, despite instructions to the jury not to take anything negative from a failure to testify. Martha Stewart learned that in her trial when she remained silent as her attorneys attempted to paint a nuanced picture of her motivation and thoughts. Jurors naturally wondered why a defendant did not speak for herself, particularly a powerful woman such as Stewart, when people were arguing in front of her about what she was thinking or feeling at the time.
We do not want to accept senseless death any more than senseless murder. There is an entire cable industry eager to supply the answers the public demands — regardless of the evidence. Thus, when Whitney Houston appeared to have drowned in her bathroom after a very public drinking binge, Grace went on the air to demand to know who “pushed her underneath that water? … Who let Whitney Houston go under her water?” Of course, it could not have been the tankerload of booze and pharmacy of drugs in her hotel room. Where there is a dead celebrity, there has to be a celebrity killer.
For jurors, the need to understand a murder is less sensational and certainly more redeeming. They will study every detail of a defendant, from his face to his clothes, to try to understand him in the absence of testimony. It is not simply a search for guilt or innocence. There is a great desire to understand a heinous crime on a personal level. Jurors (and many onlookers) want something more profound — and often less attainable — than simple proof of guilt or innocence. Indeed, the desire for understanding could be more about us than either the defendant or the victim. There is a deep insecurity that we may try not to admit — a suspicion that each of us is capable of murder under the right circumstances. For some of us, it takes more than others. For Huguely, it took a broken relationship, taunting text messages and a lot of alcohol.
Most of us live between lines of the law — resisting impulses great and small. We are then confronted by someone who breaks all the rules and shatters our assumptions. For Andrea Yates, it was a mother drowning her five beautiful children. For Huguely, it was ending the life of a beautiful girl as well as effectively his own life.
Suspect not like me
While we call it “unthinkable,” we think about it too much. We want to understand why a person did what he did — perhaps to reassure ourselves that we would not do the same thing. In the end, we prefer to find a monster behind the defense table. It allows us to say subconsciously, “He’s not like me.” Yet sometimes defendants appear all too normal. When Yates walked out of the courthouse, we saw a scared housewife and it was chilling. Why? Precisely because she was a housewife with a wonderful family and husband. When we looked at Huguely, we saw a lacrosse star graduating from one of the nation’s premier schools — the type of boy most parents hope their daughter will meet. We want it to be “complicated” because the simple truth is unnerving.
The fact is that many murder cases do not have any hidden truth. The search for meaning ends with just a boozed up kid and a dead girl. The death of Yeardley Love was indeed as senseless for Huguely as it was for the rest of us. There is no moral to this morality play. It is not complicated, and that is precisely the problem.
February 29, 2012
THE RIGHT TO LIE
Xavier Alvarez will soon have something to brag about, assuming anyone believes him. On Wednesday, he will join the small number of citizens who have appeared before the U.S. Supreme Court. He has secured this distinction, however, not by what he achieved in his life but what he falsely claimed to have achieved.
Alvarez, you see, is a liar. Upon that much, everyone agrees. What has perplexed judges is whether his lies are protected by the First Amendment.
In the annals of deceit, Alvarez is something of a standout. After his election to a water board in California, he introduced himself at a public meeting as “a retired Marine of 25 years,” a repeatedly wounded warrior and a Medal of Honor recipient. He also told people that he was once a professional hockey player with the Detroit Red Wings and was secretly married to a Mexican starlet. A few people thought it curious that a former hockey star and war hero ended up on the Three Valleys Municipal Water District board in Claremont, Calif., so far from his starlet wife. It seemed like virtually everything he said about himself after “I am Xavier Alvarez” wasn’t true. He was found out, publicly ridiculed and hounded out of office.
Normally, that would be the end of it. However, for local prosecutors, it was not enough to expose Alvarez as a fraud — they decided to make him one of the first people prosecuted under the Stolen Valor Act of 2005. Signed into law by President George W. Bush, the act makes it a crime to falsely claim “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” Across the country, a number of rather pathetic individuals are being prosecuted for parading around in uniforms and pretending to be heroes.
The problem with the law they may have broken is not just that it is unnecessary, but that it can be dangerous to criminalize lies. After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government.
After Alvarez was convicted, he challenged the constitutionality of the law, claiming that it violated his First Amendment rights. The federal court of appeals in San Francisco ruled in his favor in two separate opinions. Now the case will go to the Supreme Court, where the Obama administration will argue that the First Amendment does not protect lies as it does true statements.
Under this logic, Congress would be able to criminalize statements solely because they are lies, alleging some type of amorphous social harm. The government would become the truth police, determining when fibs become felonies.
Lying about military service is a long and dishonorable tradition, standard since the founding of the republic. Some of our greatest colonial heroes were accused of lying about their military records. Gen. Friedrich Wilhelm von Steuben, who served in the Continental Army during the American Revolution, passed himself off as a “lieutenant general in the king of Prussia’s service” when it appears that he not only had been discharged under a cloud of controversy from the King of Prussia’s service but had achieved only the rank of captain.
The Stolen Valor Act criminalizes what many view as a common human impulse. When the issue was raised before the federal appeals court, Chief Judge Alex Kozinski balked at the notion that lies can be crimes in a society saturated by untruths. “Saints,” he noted, “may always tell the truth, but for mortals living means lying.” Kozinski is supported by a host of studies on the human propensity, even necessity, to lie. This tendency to shape the truth can combine with a certain human inclination toward fantasy.
While common, lies have limits. The dividing line in the law has always been fraud or related crimes — using lies to gain money or benefits. When someone lies about their military service or makes other claims, such as an incurable illness, to enrich themselves, it is a crime. It is not the lie but the larceny that is being prosecuted. But the Stolen Valor Act was designed to address cases in which the individual is not deriving financial gain or other benefits; rather, the law punishes the boast or the brag itself.
Faux warriors tend to be liars who take the added step of merging their fantasy lives with their actual lives. Darrow “Duke” Tully, once a close associate of Sen. John McCain, often discussed his harrowing moments as a combat pilot with 100 missions over Vietnam and told of surviving the crash of a fighter jet in Korea. It turned out that he did not receive the Purple Heart, the Distinguished Flying Cross or the Vietnam Cross of Gallantry — he was never even in the military. For Tully, the penalty was public shame and the loss of the respect he had enjoyed as the publisher of the Arizona Republic.
The people who take their fantasies to the extreme of wearing uniforms and medals are few, and they are usually easy to spot. When Michael Patrick McManus walked into a party for Houston Mayor Annise Parker in 2010, he was covered in military medals, including paratrooper jump wings and a chivalric medallion indicating that he was a Commander of the British Empire.
For these individuals, the desire to self-promote is often irresistible and eventually insatiable — even when they take things to absurd levels. When former Marine Staff Sgt. David Weber promoted himself to a two-star major general with two Purple Hearts, he was quickly uncovered by someone who simply looked at the relatively short list of generals. Likewise, Illinois judge Michael F. O’Brien was exposed after he sought special license plates to go along with the Medal of Honor he claimed to have earned. He was denounced and forced off the bench.
Steve Burton, a bank employee from Palm Springs, Calif., was uncovered at his high school reunion in 2009 when he appeared in the uniform of a Marine lieutenant colonel decorated with an array of medals, including the Purple Heart, the Bronze Star and the Navy Cross. All were recognitions, he claimed, from a grateful nation for his service in Afghanistan and Iraq. Unfortunately for him, he ran into a former classmate who was a real Navy commander and who exposed him as a fraud.
These stories, and the public ridicule that comes with the make-believe, show that we have little tolerance for fake heroes and ample means to detect them. The Stolen Valor Act merely adds a criminal charge to public scorn.
Supporters of the bill insist that prosecutions are needed to maintain the value and dignity of our military citations. The Congressional Medal of Honor Foundation has taken this argument one step further in its amicus brief to the Supreme Court. It says these medals are not just recognitions of heroism but the very inducement for heroism. It chastised the federal court for its “lack of appreciation” when the court said it was insulting to suggest that heroes are motivated by the desire for medals. The foundation insisted that heroes do seek these medals in risking their lives, curiously citing the tradition of Roman generals giving spears and cups to soldiers who distinguished themselves in battle.
Putting aside the question of whether these frauds discourage real heroism, the implications for free speech are chilling. If the government can criminalize lies about medals, it can criminalize lies about other subjects. If it is harmful to lie about soldiers, what about lying about being a former police officer or a former firefighter? How about lying about politicians or religion or terrorism?
Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment. One person who appears comfortable with that role is Judge Jay Bybee, who wrote one of the dissenting opinions in the Alvarez case. Bybee, who was an assistant attorney general in the Justice Department’s Office of Legal Counsel from 2001 to 2003, is one of the authors of the Bush administration’s infamous “torture memos.” These memos justified the use of waterboarding and were later retracted by the Bush administration as “flawed.” Bybee was accused of misrepresenting legal authority to justify what many view as not just a torture program but a war crime. That form of falsehood, however, appears protected — the Justice Department didn’t even report Bybee to his bar association.
In my view, misrepresenting legal authority to defend torture is far more damaging to the nation than someone prancing around with a Silver Star and some French Foreign Legion medallion.
The First Amendment protects free speech, not just truthful speech. It exists to give a certain breathing room to citizens to avoid the chilling effect of the threat of prosecution. Free speech is its own disinfectant. It tends to expose lies and isolate liars. But it means that we often protect speech that has little value in its own right. We are really not protecting the right of Xavier Alvarez to tell lies. We are protecting the right of everyone to speak, even when they may be called liars.
As for our heroes, they are no more diminished by pathetic pretenders than top singers are diminished by bad karaoke. We know the real thing when we see it.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post (Sunday), February 19, 2012.
For most Americans, the term “recess” brings to mind fond memories of free time to play outside the strict rules of the classroom. For presidents, the term can have the same euphoric effect as a free hand to play outside the strict rules of the Constitution.
While the Constitution requires high-level officials to be confirmed by the Senate, an arcane provision in Article II states that a president can make recess appointments when Congress is not in session. However, what if Congress did not think it was recessed and a president handed out appointments over the equivalent of a long weekend? That is the controversy brewing in Congress, which is looking into four appointmentsPresident Obama made in January. Those appointments include that of Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster.
For the record, I support Cordray, a well-qualified nominee who has been treated poorly by the political system. However, in a nation committed to the rule of law, it is often as important how you do something as what you do. This is not the way to win a fight with Congress over a nomination.
The controversy is loaded with partisan rhetoric and chest pounding on both sides. It is the common lament of academics that the concern over the faithful interpretation of the Constitution arises only when it is politically expedient. Though there are exceptions in Congress, the Cordray appointment is a prime example. Many members who were silent during the recess appointments of George W. Bush have become vocal opponents of the practice under Obama. Conversely, Democrats who now stand silent once cried foul when Bush used recess appointments to circumvent significant opposition to nominees, such as John Bolton to be ambassador to the United Nations.
Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess and took steps to “stay in business” to prevent any end run by the president. Under the Constitution, neither chamber of Congress can recess for more than three days without the consent of the other chamber. This winter, the House expressly declined to give consent — holding sessions every three days to prevent any recess appointments. Moreover, this session was hardly “pro forma.” Just three days after going into the session in December, Congress passed the president’s demand for a two-month payroll tax holiday extension. So the Obama administration was doing business with Congress on important legislation while simultaneously claiming that Congress was functionally out of session.
Since the very first administration, presidents have taken advantage of this free hall pass to fill offices. The first five presidents made dozens of recess appointments, including five to the Supreme Court. Ironically, some of these appointments proved the wisdom of requiring confirmation. For example, George Washington gave a recess appointment in 1795 to John Rutledge of South Carolina to serve as chief justice. Rutledge was later described by his fellow South Carolinians as prone to “mad frollicks” and “frequently so much deranged, as to be in a great measure deprived of his senses.” Rutledge tried repeatedly to drown himself in various rivers before finally resigning within a year of his appointment.
The use of such unilateral power strikes at the very heart of our system of government and dangerously tips the balance of power. President Obama clearly wanted to make a point about his effort to protect consumers. But for the Constitution, that political point comes at too high a price. Replacing an intransigent Congress with an imperial president is no bargain for those who value our constitutional system.
When it made sense
While there can be debate over the precise meaning of Article II’s reference to “vacancies that may happen during the recess,” it was not intended to mean this. The earliest interpretations of this language took the plain meaning of the language as addressing vacancies that occur during a recess. In the early period of the Republic, Congress would often be recessed for six or even nine months out of the year. Alexander Hamilton and others argued that the provision simply reflected this practical necessity to fill positions during breaks.
With the long modern congressional sessions, the motivating concern behind the Recess Appointment Clause is largely gone. It is primarily used today for the purpose that the Framers clearly did not intend — circumventing Congress. For that reason, I have criticized past presidents for appointing submitted nominees who were not confirmed because of congressional opposition.
The Cordray appointment, like its recent precedents, threatens to turn a carefully balanced process of nominations and confirmations into little more than a type of blinking contest with Congress. Putting aside the contradiction with both the language and history of the Constitution, it is bad policy and an abuse of power that all citizens, regardless of party affiliation, should condemn.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. He will testify on the recess appointment power before the House Judiciary Committee on Feb. 15.
USA Today February 15, 2012
Every year, the State Department issues reports on individual rights in other countries, monitoring the passage of restrictive laws and regulations around the world. Iran, for example, has been criticized for denying fair public trials and limiting privacy, while Russia has been taken to task for undermining due process. Other countries have been condemned for the use of secret evidence and torture.
Even as we pass judgment on countries we consider unfree, Americans remain confident that any definition of a free nation must include their own — the land of free. Yet, the laws and practices of the land should shake that confidence. In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves?
While each new national security power Washington has embraced was controversial when enacted, they are often discussed in isolation. But they don’t operate in isolation. They form a mosaic of powers under which our country could be considered, at least in part, authoritarian. Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of “free,” but the United States now has much more in common with such regimes than anyone may like to admit.
These countries also have constitutions that purport to guarantee freedoms and rights. But their governments have broad discretion in denying those rights and few real avenues for challenges by citizens — precisely the problem with the new laws in this country.
The list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company.
Assassination of U.S. citizens
President Obama has claimed, as President George W. Bush did before him, the right to order the killing of any citizen considered a terrorist or an abettor of terrorism. Last year, he approved the killing of U.S. citizen Anwar al-Awlaqi and another citizen under this claimed inherent authority. Last month, administration officials affirmed that power, stating that the president can order the assassination of any citizen whom he considers allied with terrorists. (Nations such as Nigeria, Iran and Syria have been routinely criticized for extrajudicial killings of enemies of the state.)
Under the law signed last month, terrorism suspects are to be held by the military; the president also has the authority to indefinitely detain citizens accused of terrorism. While Sen. Carl Levin insisted the bill followed existing law “whatever the law is,” the Senate specifically rejected an amendment that would exempt citizens and the Administration has opposed efforts to challenge such authority in federal court. The Administration continues to claim the right to strip citizens of legal protections based on its sole discretion. (China recently codified a more limited detention law for its citizens, while countries such as Cambodia have been singled out by the United States for “prolonged detention.”)
The president now decides whether a person will receive a trial in the federal courts or in a military tribunal, a system that has been ridiculed around the world for lacking basic due process protections. Bush claimed this authority in 2001, and Obama has continued the practice. (Egypt and China have been denounced for maintaining separate military justice systems for selected defendants, including civilians.)
The president may now order warrantless surveillance, including a new capability to force companies and organizations to turn over information on citizens’ finances, communications and associations. Bush acquired this sweeping power under the Patriot Act in 2001, and in 2011, Obama extended the power, including searches of everything from business documents to library records. The government can use “national security letters” to demand, without probable cause, that organizations turn over information on citizens — and order them not to reveal the disclosure to the affected party. (Saudi Arabia and Pakistan operate under laws that allow the government to engage in widespread discretionary surveillance.)
The government now routinely uses secret evidence to detain individuals and employs secret evidence in federal and military courts. It also forces the dismissal of cases against the United States by simply filing declarations that the cases would make the government reveal classified information that would harm national security — a claim made in a variety of privacy lawsuits and largely accepted by federal judges without question. Even legal opinions, cited as the basis for the government’s actions under the Bush and Obama administrations, have been classified. This allows the government to claim secret legal arguments to support secret proceedings using secret evidence. In addition, some cases never make it to court at all. The federal courts routinely deny constitutional challenges to policies and programs under a narrow definition of standing to bring a case.
The world clamored for prosecutions of those responsible for waterboarding terrorism suspects during the Bush administration, but the Obama administration said in 2009 that it would not allow CIA employees to be investigated or prosecuted for such actions. This gutted not just treaty obligations but the Nuremberg principles of international law. When courts in countries such as Spain moved to investigate Bush officials for war crimes, the Obama administration reportedly urged foreign officials not to allow such cases to proceed, despite the fact that the United States has long claimed the same authority with regard to alleged war criminals in other countries. (Various nations have resisted investigations of officials accused of war crimes and torture. Some, such as Serbia and Chile, eventually relented to comply with international law; countries that have denied independent investigations include Iran, Syria and China.)
The government has increased its use of the secret Foreign Intelligence Surveillance Court, which has expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. In 2011, Obama renewed these powers, including allowing secret searches of individuals who are not part of an identifiable terrorist group. The administration has asserted the right to ignore congressional limits on such surveillance. (Pakistan places national security surveillance under the unchecked powers of the military or intelligence services.)
Immunity from judicial review
Like the Bush administration, the Obama administration has successfully pushed for immunity for companies that assist in warrantless surveillance of citizens, blocking the ability of citizens to challenge the violation of privacy. (Similarly, China has maintained sweeping immunity claims both inside and outside the country and routinely blocks lawsuits against private companies.)
Continual monitoring of citizens
The Obama administration has successfully defended its claim that it can use GPS devices to monitor every move of targeted citizens without securing any court order or review. (Saudi Arabia has installed massive public surveillance systems, while Cuba is notorious for active monitoring of selected citizens.)
The government now has the ability to transfer both citizens and noncitizens to another country under a system known as extraordinary rendition, which has been denounced as using other countries, such as Syria, Saudi Arabia, Egypt and Pakistan, to torture suspects. The Obama administration says it is not continuing the abuses of this practice under Bush, but it insists on the unfettered right to order such transfers — including the possible transfer of U.S. citizens.
These new laws have come with an infusion of money into an expanded security system on the state and federal levels, including more public surveillance cameras, tens of thousands of security personnel and a massive expansion of a terrorist-chasing bureaucracy.
Some politicians shrug and say these increased powers are merely a response to the times we live in. Thus, Sen. Lindsey Graham (R-S.C.) could declare in an interview last spring without objection that “free speech is a great idea, but we’re in a war.” Of course, terrorism will never “surrender” and end this particular “war.”
Other politicians rationalize that, while such powers may exist, it really comes down to how they are used. This is a common response by liberals who cannot bring themselves to denounce Obama as they did Bush. Sen. Carl Levin (D-Mich.), for instance, has insisted that Congress is not making any decision on indefinite detention: “That is a decision which we leave where it belongs — in the executive branch.”
And in a signing statement with the defense authorization bill, Obama said he does not intend to use the latest power to indefinitely imprison citizens. Yet, he still accepted the power as a sort of regretful autocrat.
An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.
The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”
Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”
Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely.
The indefinite-detention provision in the defense authorization bill seemed to many civil libertarians like a betrayal by Obama. While the president had promised to veto the law over that provision, Levin, a sponsor of the bill, disclosed on the Senate floor that it was in fact the White House that approved the removal of any exception for citizens from indefinite detention.
Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post (Sunday) January 15, 2012
This week in Washington, the United States is hosting an international conference obliquely titled “Expert Meeting on Implementing the U.N. Human Rights Resolution 16/18.” The impenetrable title conceals the disturbing agenda: to establish international standards for, among other things, criminalizing “intolerance, negative stereotyping and stigmatization of … religion and belief.” The unstated enemy of religion in this conference is free speech, and the Obama administration is facilitating efforts by Muslim countries to “deter” some speech in the name of human rights.
Although the resolution also speaks to combating incitement to violence, the core purpose behind this and previous measures has been to justify those who speak against religion. The members of the Organization of Islamic Cooperation, or OIC, have been pushing for years to gain international legitimacy of their domestic criminal prosecutions of anti-religious speech.
This year, Secretary of State Hillary Rodham Clinton invited nations to come to implement the resolution and “to build those muscles” needed “to avoid a return to the old patterns of division.” Those “old patterns” include instances in which writers and cartoonists became the targets of protests by religious groups. The most famous such incident occurred in 2005 when a Danish newspaper published cartoons mocking the prophet Muhammad. The result were worldwide protests in which Muslims reportedly killed more than 100 people — a curious way to demonstrate religious tolerance. While Western governments reaffirmed the right of people to free speech after the riots, they quietly moved toward greater prosecution of anti-religious speech under laws prohibiting hate speech and discrimination.
The OIC members have long sought to elevate religious dogma over individual rights. In 1990, members adopted the Cairo Declaration, which rejected core provisions of the U.N. Universal Declaration of Human Rights and affirmed that free speech and other rights must be consistent with “the principles of the sharia,” or Islamic law. The biggest victory of the OIC came in 2009 when the Obama administration joined in condemning speech containing “negative racial and religious stereotyping” and asked states to “take effective measures” to combat incidents, including those of “religious intolerance.” Then, in March, the U.S. supported Resolution 16/18’s call for states to “criminalize incitement to imminent violence based on religion or belief.” It also “condemns” statements that advocate “hostility” toward religion. Although the latest resolution refers to “incitement” rather than “defamation” of religion (which appeared in the 2005 resolution), it continues the disingenuous effort to justify crackdowns on religious critics in the name of human rights law.
The OIC has hit on a winning strategy to get Western countries to break away from their commitment to free speech by repackaging blasphemy as hate speech and free speech as the manifestation of “intolerance.” Now, orthodoxy is to be protected in the name of pluralism — requiring their own notion of “respect and empathy and tolerance.” One has to look only at the OIC member countries, however, to see their vision of empathy and tolerance, as well as their low threshold for anti-religious speech that incites people. In September, a Kuwaiti court jailed a person for tweeting a message deemed derogatory to Shiites. In Pakistan last year, a doctor was arrested for throwing out a business card of a man named Muhammad because he shared the prophet’s name.
The core countries behind this effort show little tolerance or “empathy” themselves for opposing religions or viewpoints. Saudi Arabia will not allow the construction of a church in the kingdom, let alone allow public observance of other faiths. This year, the Saudi interior minister declared free speech to be an offense against God, declaring the kingdom “categorically [bans] all sorts of demonstrations, marches and sit-ins … as they contradict Islamic sharia law and the values and traditions of Saudi society.” Last week, Saudi courts sentenced an Australian Muslim to be flogged 500 times and sent to jail for “insulting” Muhammad.
What is more alarming, however, is the advancement of this agenda in Western countries. This year, Dutch legislator Geert Wilders secured a hard-fought acquittal from criminal charges after years of investigation and litigation for saying disrespectful things about Muslims. In Britain, a 15-year-old girl was arrested in November 2010 for burning a Koran. Other religions are now following suit and calling for the arrest of those who utter criticisms of their faiths. French fashion designer John Galliano was convicted in September of uttering anti-Semitic remarks in an outburst in a restaurant. In Russia, two prominent art curators in Moscow who faced up to three years in prison for showing art that insulted the Russian Orthodox Church were fined in 2010. In Britain, a 15-year-old boy was given a criminal summons for holding up a sign declaring “Scientology is not a religion, it is a dangerous cult.”
Although the OIC and the Obama administration claim fealty to free speech, the very premise of the meeting reveals a desire to limit it. Many delegates presuppose that speech threatens faith, when it has been religious orthodoxy that has long been the enemy of free speech. Conversely, free speech is the ultimate guarantee of religious freedom.
History has shown that once you yield to the temptation to regulate speech, you quickly find yourself on a slippery slope as other divisive subjects are added to the list. This year, Sen. Lindsey Graham (R-S.C.) declared ominously that “free speech is a great idea, but we’re in a war.”
It seems that some have grown weary of free speech. After all, less speech means less division and discord. When the alternative is violent protests, silence is golden for governments. Of course, denying the right to speak does not create real tranquillity, only the illusion. But for these governments, including our own, an illusion may be as good as reality.
Jonathan Turley is a professor of public interest law at George Washington University.
Los Angeles Times December 13, 2011
How Much Privacy Do You Expect? The Death of Privacy in America
In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.
This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.
The Jones case involves one of the most ubiquitous pieces of technology in modern life: a Global Positioning System device. Antoine Jones was convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.
This surveillance continued after a warrant had expired. But the Obama administration insists that no warrant should be required for the government to track the movements of citizens with such devices. The administration says that the new technology merely captures what can be observed, albeit in far greater detail. But the technology could allow the government to follow an almost limitless number of citizens in real time, all the time. If successful in its argument, the Justice Department would expand the powers of the government to spy on citizens to what Justice Stephen Breyer called Orwellian proportions.
Privacy appears to be in a vicious 40-year cycle. In Katz, the court was dealing with decades of increasing surveillance under the “trespass doctrine,” established in 1928, which allowed the government to conduct warrantless surveillance so long as it did not physically trespass on the property of a citizen. When the court created the ill-conceived doctrine, technology was already making the trespass test meaningless. With new devices, agents could listen to conversations without entering a home or office. This is why the court’s pronouncement that the Constitution “protects people, not places” was such a victory for civil liberties. But what if the people don’t care?
Under the Katz test, warrants would be needed when there is a “reasonable expectation of privacy” by a citizen. But that standard laid the foundation for the demise of privacy. As we come to expect less privacy, we are entitled to less of it.
As warrantless surveillance rises, our expectations fall, allowing such surveillance to become more common. The result is a move toward limitless police powers. Those declining expectations are at the heart of the Obama administration’s argument in Jones, where it insists that the government is free to track citizens without warrants because citizens expect to be monitored.
The United States was once defined by an intense commitment to privacy, with far greater protection than was found in some of our closest allies, such as Britain. That was already changing, however, when the Katz decision was handed down. The erosion of privacy sped up as new rulings joined new technology in creating more transparency in society in the 1970s and 1980s. The court chipped away at citizens’ expectations with a long line of exceptions to the rules for when a warrant is necessary — allowing the government to pat down citizens, review their bank records, intercept the telephone numbers they dial, search their cars, search travelers at borders and airports, and perform an array of other searches deemed “reasonable.” Those exceptions have now swallowed the rule, so that more searches today are done without warrants than with them.
Beyond those exceptions, we are living with a growing network of public surveillance cameras on highways and city streets. Chicago alone has installed about 10,000 such cameras in the past few years. Britain still surpasses the United States with a state and private network of 1.85 million closed-circuit TV cameras. These systems often feature facial-recognition software that not only records the movement of citizens but can identify individuals.
Privacy is also under assault from private companies. In the years since the Katz decision, security cameras and other technology have multiplied; companies routinely watch customers and employees. Video surveillance is a $3.2 billion industry, one-third of the overall security market, according to 2007 data from the Security Industry Association.
When I teach Katz and privacy in a law school classroom, a university sign warns everyone that “this room is subject to surveillance.” It is a telling reminder of how, even in discussing the loss of privacy, the lecture is being taped by the institution. Even elementary and high school students are now accustomed to being under surveillance on their buses and in their schools. For these children, continuous monitoring is just part of life.
Today, we are under surveillance as we drive from our houses in the morning, when we stop to buy coffee, when we return to the road and when we enter our workplaces, where our phones are often monitored and our offices surveilled by video cameras. The monitoring only ends at home, when we close our doors — if we’re lucky. In a 2001 case, the court ruled that the government couldn’t use thermal imaging to track people inside their homes without a warrant, but that was a 5 to 4 vote.
After 9/11, President George W. Bush greatly expanded the scope of warrantless surveillance, and President Obama has maintained and even increased those powers. Citizens have largely accepted the false premise that privacy is the enemy of security and have supported ever-widening surveillance powers. The problem is that privacy remains an abstraction, while crime, or terrorism, is a concrete threat.
The Jones case, however, highlights the flaw in our legal understanding of privacy. The Obama administration is arguing that citizens expect that their second-by-second movements can be tracked. If the government goes too far, the administration told the court, the solution is not found in the Constitution but in Congress. That’s a dangerous view, however, as Congress has historically been indifferent, if not hostile, to individual rights. Few members are willing pass laws to protect privacy over security demands, leaving many arguing for small government while ignoring the Big Brother that dwells within it.
Under Katz, it turns out, the problem is not with the government but with us. We are evolving into the perfect cellophane citizens for a new transparent society. We have grown accustomed to living under observation, even reassured by it. So much so that few are likely to notice, let alone mourn, privacy’s passing.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post (Sunday), November 13, 2011
THE RIGHT OF CITIZENS TO VIDEOTAPE POLICE
Twenty years ago, as Rodney King was beaten by Los Angeles police officers, a private citizen in a nearby apartment turned on his video camera. Largely because of that tape, four officers were criminally charged. In July, a homeless schizophrenic man died after a police beating in Fullerton. Audio from a cellphone video caught Kelly Thomas’ cries for his father and helped force an investigation that resulted in a first-degree murder charge against one police officer.
The increasing availability of cellphones and video cameras has fundamentally changed police abuse cases, creating vital evidence in cases that were once dismissed as matters of conflicting accounts between officers and citizens. With that change, however, has come a backlash from officers who, despite court rulings upholding the right of citizens to tape police in public, have been threatening or arresting people for the “crime” of recording them. In many states, prosecutors have fought to support such claims and put citizens in jail for videotaping officers, even in cases of police abuse.
In New York this year, Emily Good was arrested after videotaping the arrest of a man at a traffic stop in Rochester. Good was filming from her frontyard; an officer is heard saying to her, “I don’t feel safe with you standing behind me, so I’m going to ask you to go into your house.” When she continued to film, the officer said, “You seem very anti-police,” and arrested her.
DOCUMENT: 1st Circuit Court decision: Citizens’ right to record
In Illinois last month, Brad Williams filed a lawsuit against the Chicago Police Department because, he said, he was beaten by police in response to his filming an officer holding and dragging a man down the street from inside a moving squad car. Ironically, Chicago has rejected complaints about the installation of thousands of cameras in the city that film citizens in public for use in prosecutions.
In Maryland in July, Anthony Graber got a well-deserved speeding ticket, but his real mistake was posting footage from his motorcycle helmet-cam on YouTube. It showed an irate off-duty, out-of-uniform officer pulling him over with his gun drawn. Prosecutors obtained a grand jury indictment against Graber on felony wiretap charges, which carry a 16-year prison sentence.
In Boston in August, the U.S. 1st Circuit Court of Appeals ruled unambiguously that the Constitution protects citizen videographers filming in public. In that case, attorney Simon Glik was walking past the Boston Common on Oct. 1, 2007, when he came upon three Boston officers arresting a man. Glik turned on his cellphone camera after hearing a witness say the police were being abusive. An officer told Glik to turn off his camera. When Glik refused, he was arrested for violation of the state wiretap statute, disturbing the peace and, for good measure, aiding in the escape of a prisoner.
The charges were dismissed after a public outcry, but in a later civil rights case, city attorneys fought to deny citizens the right to videotape police. The court rejected Boston’s arguments and found that the police had denied Glik his 1st and 4th Amendment rights.
But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the U.S. Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union, which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.
The ACLU lawyer had uttered just 14 words when Posner barked: “I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Posner then added his concerns about meddling citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.”
Many judges may privately share Posner’s view of such confrontations. And the near-total silence of politicians in dealing with the question of the public’s right to record what they see and hear suggests that many legislators may also find these cases inconvenient.
Actions against citizen videographers run against not just the Constitution but good public policy. Yet, without a videotape, Rodney King would have been just another guy with a prior record claiming abuse, against the word of multiple officers.
The outcome once was all but inevitable: no tape, no case. As long as police abuse is out of sight, it can also be out of mind. If successful, the backlash against citizens recording police could guarantee that Rodney King is never repeated — the officers’ trial, that is.
Jonathan Turley is a professor of public interest law at George Washington University.
Los Angeles Times, November 8, 2011
For lawyers, however, the most interesting aspect of this claim was that it could only be made by Mariah Yeater confessing to statutory rape. The problem is that Bieber was just 16 years old in California where the age of consent is 18. Thus, Yeater would only prevail by establishing that he is a rape victim and she is a statutory rapist.
While Bieber denies any sexual encounter with Yeater (and indeed ever meeting her), Los Angeles Police Commander Andrew Smith has said that, given the publicity, “Of course we’ll look into it.” In the meantime, her attorney insists that they will go forward despite any statutory rape charge to secure paternity liability against Bieber. It is true that paternity laws focus on fatherhood rather than adulthood in determining such liability.
Certainly, if history is any measure, the threat of a statutory rape charge has not been a major deterrent in celebrity circles. The sad truth is that statutory rape is nothing new in Hollywood. Errol Flynn was well known for his preference for under-aged girls, which he referred to as his “San Quentin Quail.” He was prosecuted for statutory rape in 1943 but acquitted after jurors learned that one of the girls had had a prior abortion.
Likewise, Charlie Chaplin was also repeatedly accused of affairs with under-aged girls and actually married two 16-year-olds in successive marriages in 1918 and 1924.
It was a surprise to many, not the least of whom was Roman Polanski, when prosecutors charged the director in 1977 with statutory rape of a 13-year-old girl. After all, in Hollywood, Polanski was the ultimate alpha male in a city built to glorify and serve celebrities.
The Bieber case is a type of Roman Polanski case in the reverse. Here the celebrity is allegedly the victim and the groupie is the aggressor. Of course, the notion of a celebrity as a victim can seem counter-intuitive. After all, celebrities of any age are viewed as powerful — the top of our food chain in a star-obsessed society. Moreover, the mystique surrounding celebrities makes them seem ageless as if a Justin Bieber or a Macaulay Culkin are simply playing children. They are members of a monolithic genus of humans who transcend age or notions of propriety.
In the case of Bieber, his alleged adult paramour insists that he was a willing participant and that they were mutually attracted to each other when she asked to meet him after a concert on the night of October 25, 2010. That instant connection, according to Yeager, led to a 30-second tryst in a bathroom. What is most striking is that there is no indication that she views herself as pursuing a child for sex. Perhaps the thinking goes, he is not a child, but a celebrity. By extension, she is not a child rapist, but a type of sexual celebrity tourist.
The law, however, views it differently. There is a reason why the age of consent and the age of majority are set relatively high. At age 16, state law does not view a young person as having the maturity to make decisions of consent. This is the point of statutory rape. While consensual, one party does not have the capacity to consent. In California, someone more than three years older than a sexual partner who is under the age of consent can be charged with a felony. In this case, Yeater’s attorney insists that she was within three years of Bieber’s age — making her crime only a misdemeanor.
Historically, prosecutors seem reluctant to bring actions under the celebrity-as-victim theory. For example, in 2007, there was extensive media coverage of the pregnancy of then 16-year-old Jamie Lynn Spears, sister of Britney Spears and a television star in her own right. Few seemed to note that the father, Casey Aldridge, had fathered a child with a child.
The problem is that prosecutors are not so reluctant to prosecute other alleged statutory rape cases of non-celebrities. While some states have passed “Romeo and Juliet” laws that exclude teenage lovers, other states continue to prosecute minors who have sex with other minors. Often it is the boys who are prosecuted and given records as sex offenders.
For example, in 2005, Genarlow Wilson, 17, was tried for the rape of a 15-year-old girl in Georgia. While he was ultimately convicted of aggravated child molestation, he was given a 10-year sentence and served two years before a court struck down the sentence.
Regardless of whether Bieber is a deadbeat dad or a rape victim or neither, this controversy could have a positive impact if it leads to a reexamination of statutory rape laws for celebrities and non-celebrities alike.
November 5, 2011
Undo the Stolen Valor Act to Protect Free Speech
Soon after he was elected to the board of the Three Valleys Municipal Water District in Claremont, Xavier Alvarez introduced himself at a public meeting with a lie. “I’m a retired Marine of 25 years,” he said. “Back in 1987, I was awarded the Congressional Medal of Honor.”
That was not Alvarez’s first falsehood about himself. He’d also claimed to have played professional hockey and to have been involved in the Iranian hostage crisis. But it was the Medal of Honor lie that put Alvarez in violation of the Stolen Valor Act of 2005, a law passed by Congress and signed into law by George W. Bush that prohibits anyone from falsely claiming “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”
Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.
We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.
Lying about military service is a common fib heard in barrooms and board rooms around the country. Traditionally, when people tell such lies, we condemn them. Authors have lost readers, politicians have lost votes, employees have lost jobs when the lies come to light. And sometimes we even forgive them, as was the case with Connecticut Attorney General Richard Blumenthal who won a U.S. Senate seat despite being criticized for falsely claiming to have served in the Vietnam War.
The notion that we should send braggarts and liars to jail may seem odd, but it is part of a long and dangerous trend of criminalizing actions that could be dealt with in other ways. In Texas, lying about the size of a fish in a fishing derby is now a crime, as is snacking on a subway in Washington D.C. Politicians increasingly are insisting that their pet policy peeves should warrant criminal sanctions.
The Stolen Valor Act, however, is a direct attack on free speech and therefore far more dangerous.
It would be comforting to think that no federal judge could believe that the law is constitutional, and the Ninth Circuit did toss it out. But on the original three-judge panel that heard the case in that court, one jurist was willing, if not eager, to give the government the right to arrest citizens for lying. That judge, Jay Bybee, is all too familiar to civil libertarians for his infamous role in coming up with a now-discredited legal justification for the Bush torture program.
It all seems ripped from the writings of the Ministry of Truth in Orwell’s 1984: Bybee, a man accused of falsely bending the law to justify torture, now is a judge arguing in favor of jailing citizens for lies.
Bybee is inexplicably being supported in his assault on free speech by the Obama administration. The administration was not bound to appeal the 9th Circuit’s decision, but it has, brushing aside free speech concerns in its insistence that a “nation’s gratitude for the patriotism and courage” is at stake.
President Obama is likely to find jurists receptive to his point of view on the Supreme Court. It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.
The power to criminalize lies naturally includes the right to define a lie. Giving the government such power would allow it to target “liars” who it portrays as endangering or dishonoring society. It is enough to make Big Brother blush.
Jonathan Turley is a professor of law at George Washington University.
Los Angeles Times
October 20, 2011
Last week, Americans saw a curious sight for a free nation: their president ordered the killing of two U.S. citizens without a trial or even a formal charge and the public applauded. President Obama never denied that he told the military to kill Anwar al-Awlaki on his sole discretion a year ago. They did so last week in Yemen – and killed U.S.-born cleric Samir Khan for good measure. Two U.S. citizens killed because a president unilaterally declared them to be part of a terrorist organization.
Before the killing, Obama successfully fought efforts by al-Awlaki’s family to have a court review the legality for the planned assassination of their kin. Due to reported prior associations of the U.S. government with al-Awlaki, it was a hearing that the intelligence agencies likely did not want to occur. At the time, the Justice Department argued that if al-Awlaki wanted judicial review, he should file with the clerk’s office himself – despite an order for him to be shot on sight. The Obama administration succeeded in arguing that the planned killing of a citizen on this hit list was a “political question,” not a legal question.
While few people mourn the passing of a figure like al-Awlaki who was accused being a leader in al Qaeda, they should mourn the passing of basic constitutional protections afforded to all citizens. So a president can now kill a citizen without publicly naming him as a target, stating the basis for his killing, or even acknowledge his killing once it has been carried out. Even if one assumes citizens would only be killed outside the country, it would mean that a your life becomes dispensable the minute you step a foot over one of our borders.
At the same time, the government has expanded the definition of terrorism and material support for terrorism, which in turn further expands the scope of possible targets. When confronted on the lack of knowledge of who is on this list and the basis for their killing, the Obama administration simply says that citizens must trust their president. It is the very definition of authoritarian power – and Americans appear to have developed a taste for it.
Obama’s hit list is a continuation of a policy defended by George W. Bush, who ordered an attack that killed U.S. citizen, Kamal Derwish, in Yemen in 2002. While Bush wanted Yemeni Abu Ali al-Harithi (the alleged mastermind behind the 2000 bombing of the U.S. Cole) dead, Derwish was riding in the car with him (as well as four other individuals). Derwish was not even on a hit list, but U.S. intelligence officials said it did not matter because they were authorized to kill Americans in such operations.
The sight of free people applauding the president’s discretionary killing of citizens would have horrified the framers of our Constitution. In conflict with a system based on checks and balances, Obama controls not just who will die but whether a court can review his decisions. Even if the family of these men were to try to sue for wrongful death, the Obama administration insists that they have the discretion to block such cases under the “military and state secrets privilege.” Thus, even if a president arbitrarily were to order the killing of a citizen, neither the victim nor his family could challenge the matter before an independent court (assuming they even knew about the order).
Notably, in the face of this extrajudicial killing of two citizens, Democrats who claim to be civil libertarians like Dianne Feinstein have cheered the president – creating a record for the next president to expand on these acquiesced powers.
No republic can long stand if a president retains the unilateral authority to kill citizens who he deems a danger to the country. What is left is a magnificent edifice of laws and values that, to quote Shakespeare’s Macbeth, is “full of sound and fury, signifying nothing.”
Separation of Church and State? Not on the 2012 Campaign Trial
On Oct. 7, 1801, three men wrote to the new president of the United States on behalf of their Baptist congregation in Connecticut. The letter from the Danbury Baptist Association is most famous not for its content but for the response it generated from Thomas Jefferson, who described“a wall of separation between Church & State.” The Baptists’ letter, however, deserves far greater consideration, particularly in our current political climate.
Some 210 years ago, this deeply religious group stepped forward to denounce faith-based politics and “those who seek after power and gain under the pretense of government and religion.” As reflected in the letter, it is a struggle that has existed from the nation’s founding, with politicians periodically calling upon the faithful to testify through their votes.
Those calls have generally triggered concern over the entanglement of government and religion. When the Catholic John F. Kennedy was opposed as a “papist,” for instance, he defused the criticism with a speech on the separation of church and state.
Much of that concern seemed to vanish, however, with George W. Bush and his faith-based politics. Now, religious and even sectarian pitches have become commonplace and expected on the campaign trail, even as more Americans identify themselves as secular or non-denominational. The fears of the Danbury Baptists appear to have been realized, with political campaigns, federal programs and judicial decisions moving away from a clear separation of church and state.
On any given night, listening to the presidential candidates could easily lead voters to believe that they are listening to a campaign for an ecclesiastical rather than presidential office. It is now expected that candidates will offer accounts of personal salvation and implied divine guidance. At a speech in mid-September at Jerry Falwell’s Liberty University, for instance, Texas Gov. Rick Perry spoke of his “faith journey” and told students to “trust that God wouldn’t have put you here unless he had a unique plan for your life.” Two weeks ago, Perry extended a call for people to pray for President Obama and ask God “to give him wisdom, to open his eyes” to save the country.
Newt Gingrich has set out to claim his share of the faithful by attacking the faithless. In a speech in March, he promised to protect America from atheists, secularists and, incongruously, Muslims: “I am convinced that if we do not decisively win the struggle over the nature of America, [my grandchildren] will be in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American.”
Meanwhile, former senator Rick Santorum and Rep. Michele Bachmann have spoken out against the very notion of separation of church and state. Bachmann told a large youth ministry group a few years ago that religion is supposed to be part of government: “[Public schools] are teaching children that there is separation of church and state, and I am here to tell you that is a myth. That’s not true.” Santorum has recounted how, as a Catholic, he was “appalled” by Kennedy’s “radical” statement that he believed in a wall of separation.
Mitt Romney, as a candidate on the national stage, has had to thread the needle of appealing to the religious right while avoiding a backlash over his Mormon faith. The result has been some awkward moments for the former Massachusetts governor, including a speech during his 2008 campaign in which he assured voters that “I believe that Jesus Christ is the son of God and the savior of mankind.”
In the 2008 race, Democrats moved to reclaim religious voters by adopting religious rhetoric and theopolitical policies. Churchgoers had represented 41 percent of the electorate in 2004, and 61 percent of them voted for Bush. Obama set out to change that percentage in favor of his own party and enthusiastically embraced faith-based politics. He proclaimed his intention to be “an instrument of God” and to create “a Kingdom right here on Earth.” Even the title of his book “The Audacity of Hope” was taken from sermons by his controversial spiritual adviser, the Rev. Jeremiah Wright Jr.
Like his Republican counterparts, Obama has denounced secularists — and, implicitly, their view of complete separation of church and state. He has chastised people who object to the religiosity that has become the norm in American politics. “Secularists,” he once insisted, “are wrong when they ask believers to leave their religion at the door before entering into the public square.”
After taking office, Obama expanded the scope of Bush’s controversial faith-based programs. At his inauguration, he attempted to appeal to conservative religious voters by asking minister Rick Warren to give the invocation. Warren’s book “The Purpose Driven Life” seemed perfect for Obama’s faith-infused, purpose-driven politics.
This is all a far cry from Jefferson, who refused to issue Thanksgiving Day proclamations because he thought it would violate the establishment clause. Later, Andrew Jackson also declined to declare days of Thanksgiving or fasting out of the same concern. The 1797 Treaty of Tripoli, signed by John Adams and approved by George Washington and the Senate, included a statement that “the Government of the United States of America is not in any sense founded on the Christian Religion.”
It is doubtful that Washington and Adams, let alone Jefferson, would fare well today espousing such sentiments. Indeed, tea party favorite Sarah Palin has said that “hearing any leader declare that America isn’t a Christian nation” is positively “mind-boggling.”
In today’s theopolitical world, it is hard to see where God ends and Mammon begins. For example, Perry was asked this summer not just whether he prayed but what he prayed for. Easy, he responded. He asks God to guide Obama to “turn back the health-care law . . . ask that his EPA back down these regulations that are causing businesses to hesitate to spend money.” While some may find it difficult to imagine praying for pollution, that misses the point. The key for Perry was to erase the distinction between prayer and politics.
Emphasizing religion in politics tends to deemphasize the responsibility of politicians for their decisions. Last spring, Perry was facing a devastating drought, state-wide wildfires and criticism that Texas had underfunded firefighting units. He issued an official order proclaiming three “Days of Prayer for Rain in the State of Texas.”
In this climate, it is remarkable to read the letter of the Danbury Baptists, warning that it “is not to be wondered at therefore; if those who seek after power and gain under the pretense of government and religion should reproach their fellow men — should reproach their order magistrate, as a enemy of religion, law, and good order.”
One problem with mixing religion and politics is that it quickly becomes a competition for demonstrating fealty to the faith, including promises of favoritism for mainstream religions or, conversely, discrimination against minorities. Republican presidential candidate Herman Cain has spoken of not wanting Americans “to lose our Judeo-Christian identity” and said earlier this year that he would not be comfortable appointing Muslims to his Cabinet — a position he later withdrew and apologized for after meeting with Muslim leaders.
Despite polls showing that 66percent of Americans support “a clear separation of church and state,” those Americans do not seem to be motivating politicians or shaping politics. Indeed, Democratic strategists believe that secularists have nowhere to turn — which means Obama can court religious voters without fear of losing others’ support. The result is that the 34 percent who do not support separation seem to drive the political agenda.
The danger of explicit appeals to faith in politics isn’t the establishment of an official religion; that remains highly unlikely. Rather, faith-based politics can become faith-based laws that enforce morality codes, expand public subsidies for religious institutions or sideline religious (or non-religious) minorities. Most important, our political-religious climate threatens to replace a campaign for the best policies with a contest of the most pious.
As our politicians move away from separation principles, the courts inevitably follow suit. We now appear to have (or be close to having) a majority of anti-separation Supreme Court justices who favor a type of state-supported monotheism. Justice Antonin Scalia wrote in a 2005 dissent that there is a clear majority on the court that opposes “the demonstrably false principle that the government cannot favor religion over irreligion.” He noted that “the three most popular religions in the United States, Christianity, Judaism, and Islam — which combined account for 97.7% of all believers — are monotheistic.”
Even as the world recoils from the extremism of religious-based groups and political systems in places such as Iran and Pakistan, the United States is gradually erasing the bright line that has existed for decades between religion and government. While religious instability and strife in countries around the globe should reinforce the values of separation and the message of the Danbury Baptists, instead politicians are selling themselves as the Judeo-Christian answer to a troubled world; confident, as Perry put it recently, that “He has me here at a time such as this.”
Politicized piety is at the heart of the 2012 campaign. We need to rebuild the wall between church and state that has long protected us from ourselves. The question is: Do we have enough faith in secular government to get it done?
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post, Sunday, October 2, 2011
OBAMA: A DISASTER FOR CIVIL LIBERTIES
With the 2012 presidential election before us, the country is again caught up in debating national security issues, our ongoing wars and the threat of terrorism. There is one related subject, however, that is rarely mentioned: civil liberties.
Protecting individual rights and liberties — apart from the right to be tax-free — seems barely relevant to candidates or voters. One man is primarily responsible for the disappearance of civil liberties from the national debate, and he is Barack Obama. While many are reluctant to admit it, Obama has proved a disaster not just for specific civil liberties but the civil liberties cause in the United States.
Civil libertarians have long had a dysfunctional relationship with the Democratic Party, which treats them as a captive voting bloc with nowhere else to turn in elections. Not even this history, however, prepared civil libertarians for Obama. After the George W. Bush years, they were ready to fight to regain ground lost after Sept. 11. Historically, this country has tended to correct periods of heightened police powers with a pendulum swing back toward greater individual rights. Many were questioning the extreme measures taken by the Bush administration, especially after the disclosure of abuses and illegalities. Candidate Obama capitalized on this swing and portrayed himself as the champion of civil liberties.
However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the “just following orders” defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II.
Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.
But perhaps the biggest blow to civil liberties is what he has done to the movement itself. It has quieted to a whisper, muted by the power of Obama’s personality and his symbolic importance as the first black president as well as the liberal who replaced Bush. Indeed, only a few days after he took office, the Nobel committee awarded him the Nobel Peace Prize without his having a single accomplishment to his credit beyond being elected. Many Democrats were, and remain, enraptured.
It’s almost a classic case of the Stockholm syndrome, in which a hostage bonds with his captor despite the obvious threat to his existence. Even though many Democrats admit in private that they are shocked by Obama’s position on civil liberties, they are incapable of opposing him. Some insist that they are simply motivated by realism: A Republican would be worse. However, realism alone cannot explain the utter absence of a push for an alternative Democratic candidate or organized opposition to Obama’s policies on civil liberties in Congress during his term. It looks more like a cult of personality. Obama’s policies have become secondary to his persona.
Ironically, had Obama been defeated in 2008, it is likely that an alliance for civil liberties might have coalesced and effectively fought the government’s burgeoning police powers. A Gallup poll released this week shows 49% of Americans, a record since the poll began asking this question in 2003, believe that “the federal government poses an immediate threat to individuals’ rights and freedoms.” Yet the Obama administration long ago made a cynical calculation that it already had such voters in the bag and tacked to the right on this issue to show Obama was not “soft” on terror. He assumed that, yet again, civil libertarians might grumble and gripe but, come election day, they would not dare stay home.
This calculation may be wrong. Obama may have flown by the fail-safe line, especially when it comes to waterboarding. For many civil libertarians, it will be virtually impossible to vote for someone who has flagrantly ignored the Convention Against Torture or its underlying Nuremberg Principles. As Obama and Atty. Gen. Eric H. Holder Jr. have admitted, waterboarding is clearly torture and has been long defined as such by both international and U.S. courts. It is not only a crime but a war crime. By blocking the investigation and prosecution of those responsible for torture, Obama violated international law and reinforced other countries in refusing investigation of their own alleged war crimes. The administration magnified the damage by blocking efforts of other countries like Spain from investigating our alleged war crimes. In this process, his administration shredded principles on the accountability of government officials and lawyers facilitating war crimes and further destroyed the credibility of the U.S. in objecting to civil liberties abuses abroad.
In time, the election of Barack Obama may stand as one of the single most devastating events in our history for civil liberties. Now the president has begun campaigning for a second term. He will again be selling himself more than his policies, but he is likely to find many civil libertarians who simply are not buying.
Jonathan Turley is a professor of law at George Washington University.
The Los Angeles Times
September 29, 2011
SAVE THE CONGRESSIONAL PAGES
In summer 1977, I walked on to the floor of the House of Representatives for the first time as a congressional page. Pushing through the chamber’s heavy doors, a scared kid from Chicago, I found myself in the midst of a boisterous debate that had members and pages running in every direction. I was 15 years old, and it was the beginning of an experience that would shape my life as it has the lives of thousands of other kids over the course of nearly 200 years.
That tradition is about to end without debate or discussion.
This week, Speaker John A. Boehner (R-Ohio) and Minority Leader Nancy Pelosi (D-San Francisco) suddenly eliminated the House page program without warning or consultation — purportedly to save $5 million a year. The decision came after years of offers by former pages to take over the program and generate private support that could put it on more solid financial footing. Pelosi and Boehner have both consistently ignored such proposals.
At a time when Congress and the White House are burning through hundreds of billions of dollars to wage three wars, it’s hard to believe that saving a mere $5 million is really the motive for ending the program. There has long been a suspicion that the House leadership would like to discontinue having pages for a different reason: to end the scandals caused by a few deranged members.
It’s true there have been problems with the program, but they have been due almost entirely to the members themselves, including some who sexually harassed or had sex with the teenage pages. But a program run by former pages would be a far better deterrent to abusive members, since we would not hesitate to address alleged misconduct.
Boehner and Pelosi have also said that pages are an anachronism and that technology has supplanted their role. Yet the leadership chose to simply announce the termination of a nearly 200-year-old institution without even considering the possibility of changes to the role the pages play.
While it’s true that messages and documents are now usually transmitted electronically, carrying messages was never the sole role pages performed — nor the primary reason for having them. The page system has allowed the rising generation to be present as Congress debates the laws that will shape their future.
As a page, I met and worked with some of my heroes, including Barbara Jordan and Mo Udall. And then there came the day when Hubert Humphrey came to speak on the House floor. I adored Humphrey, and it apparently showed. A Democratic member saw me and said, “Jonathan, I think you deserve a seat today.”
Under the shocked eye of my supervisor, the member sat me down next to him to hear Humphrey. Afterward, he pushed me forward, past waiting members, and said “Hubert, I have someone who would like to say something to you, Page Jonathan Turley.” I froze, unable to speak. Humphrey smiled warmly, took my hand in his and said, “Well, Jonathan, you think about what you want to say and come by my office.” To my surprise, his office actually called and invited me to stop in. But shortly before I was to do so, in January 1978, Humphrey died.
After hearing the news late that night, I sat on the Supreme Court steps facing the Capitol and sobbed. A guard came to shoo me away, but on seeing my grief, he instead just patted me on the shoulder and told me to stay as long as I wanted.
Among the ranks of former pages are many who went on to become senators or congressmen, business leaders (including Bill Gates) and other successful professionals. But whatever they went on to do, all the former pages I know carry deep and indelible marks from their service — among them, a sense of idealism that doesn’t fade.
The loss of such a unique institution is hard to quantify. The page program doesn’t generate campaign contributions or other benefits that motivate members and lobbyists. But it profoundly affects those who participate.
One of my most lasting memories of being a page was the first time I was asked to raise the flag that flies above the House when it is in session. I climbed a rickety wooden ladder leading to the top of the Capitol, and there came upon a wall with the names of pages going back many decades. I then opened up a hatch and walked out on a plank no more than a foot wide to reach the flag pole. After focusing on not falling through the aged wood, I reached the pole and looked up. I was overwhelmed.
The sun had just risen over Washington, turning the sky a radiant red. Below me the members were resuming a loud and passionate debate over the neutron bomb. I stood there in the quiet of the morning with the flag flapping in the wind, the Washington monument and Lincoln Memorial stretched out before me. The connection I felt was not just to the pages who had stood there before me but to our unique republic. I felt both the raw, unlimited promise of a free nation and the obligation to serve it.
Congress should not end one of its most inspirational institutions after two centuries with less fanfare than a deleted earmark. The page program deserved better. It can be preserved if the House leadership will only give us a chance.
Jonathan Turley is a professor at George Washington Law School and is a former House leadership page.
Los Angeles Times August 11, 2011
PRIVACY WITHOUT POLITICS: WHY THE BROWN LAWSUIT IS NOT ABOUT POLYGAMY BUT PRIVACY
Since the Supreme Court’s 2003 decision in Lawrence v. Texas, Americans have enjoyed unprecedented freedom in their lifestyles and private relationships. The decision held that states could no longer use the criminal code for social engineering, dictating the most intimate decisions of citizens in their choice of partners and relations. But even as states have abandoned laws criminalizing homosexual and adulterous relations, they have continued to prosecute one group of consenting adults: polygamists.
Last week in Utah, one such family filed a challenge to the state’s criminal law. That family — a man, Kody Brown, and his four wives and 16 children — is the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” They are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone.
Utah and eight other states make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute plural families. And they’re not a small population: the number of fundamentalist Mormon or Christian polygamists alone has been estimated to be as high as 50,000. When Muslim as well as nonreligious plural families are considered, the real number is likely many times greater.
The case of the Browns, for whom I am lead counsel, is a clear example of unacceptable government intrusion. The family has not been accused of child abuse or other crime, in almost a year of being under criminal investigation. With such allegations stripped away, the only thing remaining is a family that does not look like those of other Utah citizens. The question is whether that is enough to declare them criminals.
While widely disliked, if not despised, polygamy is just one form among the many types of plural relationships in our society. It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and “cohabits” with those partners, it is considered a crime.
One might expect the civil liberties community to defend those cases as a natural extension of its campaign for greater privacy and personal choice. But too many have either been silent or outright hostile to demands from polygamists for the same protections provided to other groups under Lawrence.
The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.
Others have opposed polygamy on the grounds that, while the Browns believe in the right of women to divorce or leave such unions, some polygamous families involve the abuse or domination of women. Of course, the government should prosecute abuse wherever it is found. But there is nothing uniquely abusive about consenting polygamous relationships. It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families.
Ultimately, the question is whether polygamy is allowed under the privacy principles articulated in Lawrence. The court did not state exclusions for unpopular relationships. Writing for the majority, Justice Anthony M. Kennedy said the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
The Browns are quite similar. They want to be allowed to create a loving family according to the values of their faith.
Civil libertarians should not be scared away by the arguments of people like Justice Scalia. We should fight for privacy as an inclusive concept, benefiting everyone in the same way. Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith.
Jonathan Turley is a law professor at George Washington University.
New York Times: July 20, 2011
Justice Thomas’ Dangerous Conceit
Louis XIV of France was infamous for his view that there was no distinction between himself and the state, allegedly proclaiming “L’État, c’est moi” (“I am the State”). That notorious merging of personality with an institution was again on display in a February speech by Supreme Court Justice Clarence Thomas before the conservative Federalist Society.
Thomas used the friendly audience to finally address a chorus of criticism over his alleged conflicts of interest and violation of federal disclosure rules concerning his wife’s income. Rather than answer these questions, however, Thomas denounced his critics as “undermining” the court and endangering the country by weakening core institutions.
In January, Common Cause released documents showing that Thomas had attended events funded by conservative billionaires David and Charles Koch. Thomas was even featured in Koch promotional material — along with Glenn Beck, Rush Limbaugh and others — for events that sought financial and political support for conservative political causes.
Worse yet, Common Cause discovered that Thomas had failed to disclose a source of income for 13 years on required federal forms. Thomas stated that his wife, Virginia, had no income, when in truth she had hundreds of thousands of dollars of income from conservative organizations, including roughly $700,000 from the Heritage Foundation between 2003 and 2007. Thomas reported “none” in answering specific questions about “spousal non-investment income” on annual forms — answers expressly made “subject to civil and criminal sanctions.”
In the interests of full disclosure, I was consulted by Common Cause before the release of the Thomas documents. I found the violations regarding Virginia Thomas’ income particularly alarming.
Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.
A justice is expressly required by federal law to recuse himself from any case “in which his impartiality might reasonably be questioned.” This law specifically requires recusal when he knows that “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
The financial disclosure forms are meant to assist the public in determining conflicts of interest. Though Thomas clearly could argue that his wife’s ties to these organizations were not grounds for recusal, he denied the court and the public the ability to fully evaluate those conflicts at the time. Instead, Thomas misled the public for years on the considerable wealth he and his wife were accumulating from ideological groups.
After Common Cause detailed the violations, Thomas simply wrote a brief letter to the court saying that the information was “inadvertently omitted due to a misunderstanding of the filing instructions.”
It is unclear how Thomas will rule in the next case in which an individual is accused of a failure to disclose on tax or other government forms. Thomas is viewed as one of the least sympathetic justices to such defenses. Indeed, last year, he joined a decision in Jerman vs. Carlisle that rejected a defense from debt collectors that their violations were due to misunderstandings of the requirements of federal law and just “bona fide errors.” In rejecting the claim that such errors were not intentional, the court reminded the defendants that “we have long recognized the common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.”
None of these issues, however, was addressed by Thomas in his speech to the Federalist Society. Instead, Thomas suggested that his critics were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were “focused on defending liberty.” He added:
“You all are going to be, unfortunately, the recipients of the fallout from that — that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties…. And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”
That was Thomas’ Louis XIV moment. Thomas appears to have finally merged his own personality with the institution itself. Thus, any criticism — even criticism that he is harming the court — is an attack on the institution. It is more than an embarrassing conceit; it can be a dangerous delusion for any justice.
The Supreme Court is not composed of nine Atlas-like jurists holding up justice in the United States. Rather, the foundations are laid in the rule of law, which speaks to all Americans in the same voice. The court is “credible,” to use Thomas’ word, because it is not the extension of the jurists themselves but the law that they are required to follow.
“I am the Court” sounds little better than “I am the State.” We will continue to “enjoy” the liberties of this nation not by the grace or grandeur of Justice Thomas but by the simple triumph of principle over personalities.
Jonathan Turley is as professor of law at George Washington University, where he teaches a class on the Supreme Court.
Los Angeles Times (Sunday) March 6, 2011
Our Ford Pinto health care law takes a hit
By Jonathan Turley
After this week’s decision striking down the entire federal health care law as unconstitutional, the White House went into a full convulsive rage at Judge Roger Vinson of the Northern District of Florida.
Borrowing an attack that has more often been heard from Republican administrations, Stephanie Cutter, a senior adviser to President Obama, issued a statement denouncing Vinson as a “judicial activist.” That charge was quickly picked up by Democratic lawmakers. The evidence cited for this charge was the fact that Vinson “declared that the entire law is null and void even though the only provision he found unconstitutional was the (individual mandate) provision,” which requires every citizen to buy health insurance.
What the White House does not mention is that it played a game of chicken over health care with the court and lost a critical battle in Florida. Instead of inserting a “severability clause” designed to protect an act from this type of global rejection, the legislation was rammed through a divided Congress with diminishing public support.
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The absence of the clause was just one of the flaws in this legislation, which even sponsors now admit must be amended to address serious problems ranging from paperwork overload to uncertain costs to questions over what plans will count under the law. Even for some of us who support national health care, the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts. There were alternatives to achieve the same end, but what was lacking was a willingness to reconsider these provisions with the approach of the new Congress.
A standard feature
Yet the failure of lawmakers to insert a boilerplate severability clause is the most puzzling. The standard clause — pardon the legalese — states, “If any particular provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby.” It is generally on a short list of basic elements for legislation, such as putting a title and preamble on a bill.
The national health care bill contained such a provision, but it was removed before passage. Of course, even without such a clause, judges can still avoid striking down an entire law and confine their rulings to a specific provision. That is what Judge Henry Hudson did last year in Virginia after finding the individual mandate unconstitutional. Hudson was right to do so, in my view, but that does not make Vinson a judicial activist.
The charge of activism sounds like the lament of every bad gambler after being discouraged from playing a high-risk hand.
The risk was always there
Many — including yours truly — had raised concerns over the constitutionality of the individual mandate. Even the respected Congressional Research Service noted that such objections might have merit. Ultimately, public officials in 26 states have challenged the law.
Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts. The result was a Ford Pinto law — a fast and cheap vehicle that would explode with even low-speed collisions.
The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded. It appeared to the court that the administration was arguing that it was an “all-or-nothing” proposition. Vinson’s ruling: Nothing it is.
Of course, the law could be ultimately saved by the U.S. Supreme Court, where it is clearly heading. In the end, however, it seems a bit forced for the Obama administration to throw around the old cry of “judicial activism” when it pushed through a law that removed the critical safety provision for severability.
The problem with games of chicken is that sometimes the other guy does not jump before the cliff.
Justice Antonin Scalia is scheduled to appear before an eager freshman class Monday to talk about the Constitution. This is nothing new for Scalia, who often speaks at law schools. These students, however, are a little different.
At the invitation of Rep. Michele Bachmann (R-Minn.), Scalia will be addressing new conservative members of the House of Representatives. To them, Scalia is a nothing short of a rock star. He personifies not only conservative values but a new model for the Supreme Court: the celebrity justice.
Where Scalia has ventured with crowd-pleasing rhetoric, other justices are following. They rally their bases on the right or the left with speeches, candid interviews, commencement addresses and book tours. They appear to be abandoning the principle of strict neutrality in public life, long a touchstone of service on the highest court.
The Bachmann event takes this posturing to a new level. Scalia will be directly advising new lawmakers who came to Congress on a mission to remake government in a more conservative image. Many of them made pledges to repeal health-care reform, restrict immigration and investigate the president – pledges based on constitutional interpretations that might end up before the court.
At best, Scalia’s appearance can be viewed as a pep talk. At worst, it smacks of a political alliance.
Supreme Court justices have long chosen fairly cloistered lives and avoided public speeches and appearances. Historically, most members of the highest court – where the proceedings are still not televised – were unrecognizable to citizens. In an incident that’s a favorite of mine, a tourist family once asked an elderly man to take their picture at the court – and found out later that it was Justice Byron White.
Justice John Paul Stevens, who retired last year, may have been the last of the breed of judges truly committed to limiting public appearances. A couple of years ago, Stevens and I spoke to a judicial conference in Milwaukee and flew on the same plane. While we chatted at the gate, a lawyer came up and introduced himself to me. He didn’t recognize Stevens, and when I introduced him to the justice, the lawyer turned scarlet and made a fast retreat. Stevens never wanted to be a legal idol. He wanted to speak only through his opinions.
But as soon as Scalia was appointed to the Supreme Court by President Ronald Reagan, it was clear that he would be a different type of justice. He was instantly recognized as the intellectual leader of the right on the court at a time of intense ideological divisions. He also chafed at the court’s monastic environment. Charming and irascible, Scalia is a much valued speaker and loves to interact with lawyers and law students. He often appears at conservative events and thrills crowds by attacking liberal doctrines. Scalia gave a revealing interview, published in this month’s California Lawyer magazine, speaking against claims that the 14th Amendment protects women and gays from discrimination. While that was not a new position for Scalia, he again triggered a public debate on issues that are likely to come before the court this term.
Scalia is not the first justice to cultivate a constituency. Justice William Douglas, appointed by Franklin D. Roosevelt in 1939, publicly embraced environmental causes, including the preservation of the C&O Canal. More recently, Justice Sandra Day O’Connor was criticized for condemning the death penalty. In a 2001 speech in Minnesota, O’Connor said that she questioned whether the death penalty could be “fairly administered in this country.” She told her audience, “Minnesota doesn’t have [the death penalty], and you must breathe a big sigh of relief every day.”
Still, Scalia is the first real celebrity justice. When he appears at conservative events, supporters line up to greet a man who seems more oracle than orator. They are drawn not just to his originalist views but to the sense that he is a purist on a court of relativists. And his fans are often rewarded with a zinger from the justice that would set the hair of every liberal on fire. For example, in a 2006 talk to students in Switzerland, Scalia denounced the idea of giving Guantanamo detainees rights in federal courts, with a disturbingly personal take on the matter: “Give me a break. . . . If he was captured by my army on a battlefield, [Guantanamo] is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean, it’s crazy.”
Other justices, particularly those on the right, appear to be following Scalia’s lead and presenting their politics publicly. This includes Justice Clarence Thomas, who is known for his utter silence during oral arguments. Outside the court, though, he has denounced our society’s “focus on our rights” and the “proliferation of rights” protecting citizens. And the whole world saw Justice Samuel Alito shake his head and mouth “not true” as the president criticized the recent Citizens United decision on campaign finance at the State of the Union address last year.
Justices who flaunt their politics publicly do more than just lecture – they also can raise cash for ideological allies. Scalia and Thomas have reportedly attended events funded by conservative billionaires David and Charles Koch. Last week, Thomas admitted through a spokesman that he “dropped by” a Koch session in 2008. Both justices were even featured in Koch promotional material with Glenn Beck and Rush Limbaugh.
Alito has spoken at a fundraiser for the Intercollegiate Studies Institute, a conservative educational group. He regularly attends conservative fundraisers, including a recent event for the American Spectator magazine; he headlined that annual dinner in 2008. When confronted about his presence at the clearly partisan event, Alito dismissed concerns, saying, “It’s not important.”
But it is important. Perhaps not to Alito or Scalia, but to the court. If justices come to personify political movements, the law appears to be merely an extension of the personalities – and the politics – on the bench.
Some judicial commentary and appearances raise serious ethical questions. Canon 4 of the judicial Code of Conduct states that a federal judge should not take part in any activities that “reflect adversely on the judge’s impartiality.” This canon specifically warns that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”
But this code applies only to lower-court judges; the members of the highest court in the land are not, in fact, subject to any code of conduct. The only direct limitation is the federal law that requires a judge or a justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This law, however, lacks a process for making a complaint and has never been enforced against a justice. Each justice is left to be the judge of his or her own alleged misconduct.
This is not a problem only for the more conservative justices. While Justices John Roberts, Scalia, Thomas and Alito have all spoken to or been honored by the conservative Federalist Society, Justice Ruth Bader Ginsburg has headlined for the liberal American Constitution Society, and Justice Stephen Breyer appears frequently before outside groups. In one speech at a foreign conference, Ginsburg assailed conservative members of Congress for statements that she said “fueled” an “irrational fringe” that threatened her life.
Ginsburg’s remarks highlight an irony with celebrity justices. During her confirmation hearings in 1993, she refused to answer questions about issues that might later come before the court. Thus the “Ginsburg rule” was born: Aspiring justices, at very cautious confirmation hearings, avoid engaging on the substance of their legal opinions. Yet, after confirmation, justices are increasingly entering into public debates over the law.
Monday’s Bachmann-convened summit featuring Scalia magnifies this problem. The effort to educate new lawmakers about the Constitution is commendable. (I have met several times with members of Congress, including Bachmann, for lunches to discuss constitutional principles.) However, if Scalia educates new members, that undermines both the court and Congress. The principle of judicial neutrality should not be compromised for a legal seminar.
Justice Robert Jackson once advised that justices “are not final because we are infallible, we are infallible because we are final.” That winking observation is certainly true – justices Justices clearly can make mistakes. Few can resist public adoration. However, as they justices yield to that temptation, citizens may find it hard to accept the finality of their decisions. If justices merely carry the torch for their political allies, law becomes little more than a part of politics.
Justices do not have a “base.” They must ask more of themselves by offering less to their respective constituencies.
Jonathan Turley is the Shapiro professor of public interest law at George Washington Law School.
January 23, 2010
Washington Post (Sunday)
Voters want a revolution. Here’s what that would take.
America is fuming. In Super Tuesday exit polls, as many as 95 percent of Republicans and 65 percent of Democrats said they were “angry” or “dissatisfied” with the federal government. I’ve heard the same when speaking to audiences across the country. Conservatives and liberals alike talk about their frustrations with a dysfunctional political system that is unresponsive to their needs and disconnected from their lives.
Voters say they want a revolution. But that’s going to take more than electing personalities that channel our angry politics. If we want real change, we need to look at fundamental reforms to all three branches of our government.
First, we need to join most of the rest of the world’s democracies in moving to direct, majority-based elections of our presidents. In a late-January Washington Post-ABC News poll, 69 percent of respondents said they were “very anxious” or “somewhat anxious” about the idea of a President Donald Trump, and 51 percent said the same about a President Hillary Clinton. Yet outside a handful of swing states, most voters don’t see themselves as having much influence on the outcome of the November election. And they’re right: It’s basically impossible for Democrats to lose deep-blue states such as California or for Republicans to lose deep-red ones such as Idaho. It doesn’t help that a president can win with less than 50 percent of the popular vote, as has happened with 15 previous presidents, or by losing the popular vote altogether, as has happened four times.
We wisely got rid of the election of senators by state legislators with the enactment of the 17th Amendment in 1913. We’re overdue to abolish the electoral college. The United States should be led by a president who can garner a simple majority of votes. And if no one reaches that threshold in the general election, we should require a runoff between the two leading candidates.
Despite the best efforts of the tea party and other insurgent movements, congressional incumbents maintain a death grip on their seats. Ninety-five percent of sitting congressmen and 82 percent of senators up for reelection won in 2014. They have an enormous fundraising advantage , but even more important, they are protected by how district lines are drawn.
To give voters real choices, we need a constitutional amendment barring gerrymandering of congressional districts and requiring that districts be based solely on population numbers and geographic continuity. Then we should alter our elections to allow the top two vote-getters in the primaries to run against each other in the general election, even if they’re from the same party, from a third party or are independent. While voters in Sugar Land, Tex., still might elect Republicans and voters in Chicago still might elect Democrats, they might elect different Republicans or Democrats. Moreover, in choosing between candidates of an opposing party, voters from the minority party in that district might favor a more moderate and ultimately more representative choice.
We need to finally end the absurd politics of the Supreme Court, which concentrates too much power in the hands of too few justices. With such a small court, one justice can have enormous influence on rulings. That’s why the arguments in so many cases, including the Texas abortion case heard this past week, are pitched to a single swing justice. It’s why confirmations have become so traumatic, as the deadlock over the replacement of Justice Antonin Scalia vividly shows.
A larger Supreme Court would diminish the power of individual justices and increase the chances that the best legal minds could get confirmed. I’ve advocated for the expansion of the court to 19 members. That’s about the average size of a U.S. circuit court and in line with other major democracies. (Germany’s high court has 16 members, Japan’s has 15, and Britain’s has 12.)
The current size of the U.S. Supreme Court is arbitrary, related to the number of federal circuits in the late 1800s. The Constitution leaves it to Congress to determine how many justices the court needs. So we could expand through legislation rather than constitutional amendment. I’d propose ramping up gradually, preventing any president from appointing more than two justices to the new seats. And while we’re at it, we should pass legislation that allows cameras in the Supreme Court, so citizens can watch how the justices address cases that affect their lives and monitor the justices’ competence. (Advancing incapacity due to age or illness is a recurring problem on the court.)
Americans are neither irrational nor apathetic. They’re alienated, because all the branches of the U.S. government have insulated themselves from the public to a dangerous degree. Rather than treating voters like barbarians at the gate, the government should let them in and allow them a more direct and meaningful role. Now that would be a revolution worth watching.
WASHINGTON POST (SUNDAY) March 7, 2016