Congress, Constitutional Law, Politics, Supreme Court

COLAs, the Courts, and the Constitution

Published April 5, 2002

This month, Associate Justices Stephen Breyer, Anthony Kennedy, and Antonin Scalia faced a challenge that any union field organizer could well appreciate. In a little reported opinion, these three justices lamented the failure of their colleagues to join them in taking a case over judicial compensation and reinforcing their position vis-à-vis their employer. In a case filed by federal judges, these three justices saw the case as a challenge to judicial independence by Congress but faced deafening silence from their other six colleagues. Writing a rare dissent in the Court’s declination of review in Williams v. United States, Justice Breyer revealed a solid core of support for reviewing, and possibly reshaping, a fundamental clause in Article III. Continue reading “COLAs, the Courts, and the Constitution” →

Columns, Congress, Politics

Bill Clinton and the Blanche DeBois Defense

Published March 18, 2002

Like Blanche DuBois in A Streetcar Named Desire, former President William Jefferson Clinton is someone that has “always depended on the kindness of strangers.” This certainly seems to be the case with Independent Counsel Robert Ray who, back in January 2001, cut Clinton a deal to avoid criminal charges in the Lewinsky matter. Now, with the release of his final report, it turns out that career prosecutors in the Ray’s office concluded that Clinton could not only be charged on the evidence but could have been convicted on the basis of that evidence. What is most troubling is that the report seems to confirm Clinton’s belief that his position, and not the evidence, would dictate the outcome of any criminal investigation. Continue reading “Bill Clinton and the Blanche DeBois Defense” →

Congress, Constitutional Law, Politics

Passenger Profiling and the Terrorist Lottery

Published March 11, 2002

LOTTERY systems are simply irresistible for many citizens. While most people realize that playing a lottery is more recreational than rational, it is a small sum to enjoy the fleeting possibility of a windfall fortune. But what if the stakes were increased to play for your life? As bizarre as this suggestion might seem, millions of travelers participate in precisely that type of lottery each month. After Sept. 11th, the airlines decided to rely a random search program rather than using a comprehensive profile selection system. As a result, 40 million air travelers each month, participate in a system that has as low a chance of success as a state lottery with their lives in the balance. Continue reading “Passenger Profiling and the Terrorist Lottery” →

Congress, Politics

Congressional Corruption and the Managing of the Enron Scandal

Published Feb. 28, 2002 /

IN watching the Enron hearings, it seems a shame that we do not have a live analyst like Olympic skating events to describe the sheer brilliance of some of the moves of the members. Without a guide, a viewer is often unaware of the level of difficulty of previously Enron-sponsored members performing demonstrations of public interest. For these members, the transformation from Enron advocates to public advocates is akin to a triple-axel jump while holding an over-stuffed bank bag. Continue reading “Congressional Corruption and the Managing of the Enron Scandal” →

Academia, Congress, Politics, Supreme Court

Abner Mikva and Living in Constitutional Denial

Published Feb. 14, 2002

A YEAR after the presidential election, some liberal Democrats still appear to be slowly moving through the stages of loss first defined by psychiatrist Elizabeth Kubler-Ross: denial, anger, bargaining, depression, and acceptance. A recent proposal from former Clinton White House Counsel Abner Mikva would suggest that some Democrats remain mired somewhere between denial and bargaining. Continue reading “Abner Mikva and Living in Constitutional Denial” →

Congress, Constitutional Law

John Walker Lindh and the Right to Citizenship

Published an. 25, 2002

THIS week marked the return of America’s most curious prodigal son. The long-waited transfer of John Walker Lindh to federal custody has focused the nation’s attention on what to do with the 20-year-old jihadi from Marin County. Regardless of Lindh’s potential criminal liability, there remains the question of his right to be called an American citizen, a son of the nation that he abandoned. Continue reading “John Walker Lindh and the Right to Citizenship” →

Constitutional Law, Justice

Emperor Basil II and America’s Secret Prisons

Published Jan. 21, 2002

IN 1014, Byzantine Emperor Basil II had a bit of a problem. He had decisively defeated the Bulgarian tsar and taken virtually the entire opposing army captive. Basil II was not keen on feeding and holding more than 14,000 prisoners of war, but he also was not inclined to release an entire army that could simply turn around and resume hostilities. His solution was both chilling and simple: He divided the army into groups of 100 and blinded 99 out of each group. He left one man with one eye in each group to lead this line of wretches back to the Bulgarian tsar. Continue reading “Emperor Basil II and America’s Secret Prisons” →

Congress, Constitutional Law

National Identification Cards and the America’s Fishbowl Society

Published Jan. 14, 2002

THIS month, a little-known group is meeting to take a step that may affect every citizen of the United States. The American Assn. of Motor Vehicle Administrators has announced it will create a de facto national identification card. The association reportedly is working with the Justice Department and the General Services Administration to create a system with a massive database encompassing every citizen. Thus largely unknown bureaucrats could create a kind of human license plate to track and restrict our movements–anathema in the U.S. In the past, it was technically impossible or prohibitively expensive to monitor more than a fraction of the population at any given time. But recent advances in technology have removed these barriers. The only thing missing was a catalyst–some event that would substitute immediate security concerns for abstract notions of privacy. That took place Sept. 11. Continue reading “National Identification Cards and the America’s Fishbowl Society” →

Justice, Media, Politics

Dominick Dunne, Gary Condit, and the Horse Whisperer

Published May 4, 2004

Last week, a New York federal judge refused to dismiss a defamation case that reads like a mix of Dr. Ruth and Dr. Seuss. At its heart is a controversy over what a procurer of prostitutes in Dubai told a “horse whisperer” in Germany who told a gossipmonger in New York who told millions of Americans about former Congress member Gary Condit. Though this might sound like a game of post office for pundits, the stakes are high — for commentators, the Constitution and for Condit. Continue reading “Dominick Dunne, Gary Condit, and the Horse Whisperer” →

Military

The Feres Follies: Sacrificing our Soldiers to Protect Military Incompetence

When the Supreme Court created the Feres Doctrine in 1950, it barred all injuries that are “incident to service,” a prohibition that effectively blocked any negligence lawsuit by a servicemember against the military. This doctrine extends to a wide array of businesses maintained by the military – from movie theaters to bowling alleys to restaurants to gasoline stations. Many are profit-making enterprises operated by civilians under contract with the military, yet they are still immune from lawsuits by military personnel.

Consider just a few of the dismissed cases from the Feres follies: Continue reading “The Feres Follies: Sacrificing our Soldiers to Protect Military Incompetence” →

Congress, Justice, Military, Politics

The Feres Doctrine: Giving our Service Members the Freedom to Sue

Published November 6, 2002

“Nothing is too good for our men and women in uniform.”

It may be the world’s most predictable political applause line. It was a central theme of President Bush’s 2000 presidential campaign. With both war and elections looming, it became a virtual mantra among politicians across the country.

This month, however, the Bush administration is waging a little-known battle to preserve a rule that reduces service members to second-class citizens. Continue reading “The Feres Doctrine: Giving our Service Members the Freedom to Sue” →

Academia, Constitutional Law

James Madison and the Mujahedeen

Published December 2001

IN Afghanistan, all politics are tribal. National governments, like the recently announced interim government, are examples of the triumph of hope over experience. Of course, no American official wants to suggest that the new government should be shaped in our own image at the risk of appearing culturally chauvinistic or insensitive. While understandable, this reluctance is tragic because James Madison has much to offer the Mujahedeen including a system that is designed to handle the very thing that is tearing their country apart. Continue reading “James Madison and the Mujahedeen” →