Monthly Archives: June 2007

Supreme Court Agrees To Hear Guantanamo Detainee Cases

This could potentially be a very significant legal development:

The Supreme Court said today that it would review the rights of Guantanamo Bay detainees to challenge their confinements in federal court, reversing a decision in April not to take up that issue.


The court will hear two cases that challenge the Bush administration’s position that the fates of hundreds of detainees held at the U.S. naval base in Cuba as alleged terrorists is best handled by military tribunals rather than the U.S. courts.

Last February, the U.S. Court of Appeals for the D.C. Circuit upheld a key provision of the Military Commissions Act, approved by Congress last year, that took away federal court jurisdiction to hear challenges from the detainees about their confinement. That is the decision the court earlier decided not to hear, but revived today.

The court consolidated two cases, Boumediene v. Bush and Al Odah v. U.S., and will hear them together sometime after its new term begins next October. In addition, the court said it would consult the findings of the D.C. circuit appeals court in two other pending cases in which detainees challenge the judgment of the military tribunals that determined them to be enemy combatants.

What makes this significant is the fact that the Bush Administration has not fared well when the Court has reviewed its detainee policies in the past:

The court has considered the rights of detainees twice in the last three years, ruling both times against the administration.

And the decision will be released right in the middle of a Presidential campaign.

Did A National ID Card Kill The Immigration Bill ?

Among the many provisions of the recently defeated immigration bill that most Americans didn’t know about was a massive expansion of the use of a National ID card. And it seems that those provisions may have ultimately been what killed the bill:

The U.S. Senate definitively rejected President George Bush’s immigration bill on Thursday, just hours after senators expressed deep misgivings with portions that would have expanded the use of a national ID card.

Because the procedural vote was 46 to 53, with 60 votes needed to advance the immigration legislation, the proposal is likely to remain dead for the rest of the year.

Privacy advocates were quick to claim that a vote against Real ID cards the previous evening doomed the bill.

Wednesday’s vote showed that senators were willing to delete the portion of the labyrinthine immigration bill that would require employers to demand the Real ID cards from new hires. Because some of the bill’s backers had insisted that the ID requirement remain in place–as a way to identify illegal immigrants–they were no longer as willing to support the overall bill.

“The proponents of national ID in the Senate weren’t getting what they wanted, so they backed away,” said Jim Harper, a policy analyst at the free-market Cato Institute who opposes Real ID. “It was a landmine that blew up in their faces.”

The American Civil Liberties Union, another longtime foe of Real ID, said the Real ID requirements were a “poison pill that derailed this bill, and any future legislation should be written knowing the American people won’t swallow it.” Another section of the immigration bill would have given $1.5 billion to state officials to pay for Real ID compliance.

Regardless of what you think of any other provisions of the immigration bill, the fact that yet another back door attempt to create a National ID card was defeated is good news. Of course, the fight’s not over yet:

Even if the immigration bill is goes nowhere, however, the Real ID Act is still in effect. It says that, starting on May 11, 2008, Americans will need a federally approved ID card to travel on an airplane, open a bank account, collect Social Security payments or take advantage of nearly any government service.

States must conduct checks of their citizens’ identification papers and driver’s licenses may have to be reissued to comply with Homeland Security requirements. (States that agree in advance to abide by the rules have until 2013 to comply.)

Let the fight continue.

Two Defeats For RealID In One Month

Yesterday, it was New Hampshire, the Live Free or Die State, that said no to the Real ID Law:

New Hampshire on Wednesday rejected the federal Real ID Act as tantamount to requiring a national ID card, joining five other states in opposing it.

South Carolina, Montana, Washington, Oklahoma and Maine also have rejected the federal act.

“Here in New Hampshire, we pride ourselves on being frugal, and here in New Hampshire, we pride ourselves on respecting the privacy of our neighbors,” Gov. John Lynch said at the bill signing.

And, earlier this month, South Carolina joined the growing chorus against Real ID:

Columbia, S.C. – June 13, 2007 – Gov. Mark Sanford today traveled to Greenville to sign S449, a bill that keeps South Carolina from participating in the costly federal mandate known as the REAL ID Act.

REAL ID is a federal initiative aimed at creating a national ID card. With the governor’s signature of the bill, South Carolina joined a growing number of other states that are declining to participate. If South Carolina were to participate in the ID program, the unfunded federal mandate would cost state taxpayers $25 million in startup costs and an additional $11 million on an annual basis. It would also increase DMV workloads by a projected 132 percent, pushing wait times to over an hour as every South Carolinian would be forced to get re-licensed in person under the new federal guidelines.

This is one of the times when I am happy that Federalism and state’s rights still mean something.

Update on the “Fairness Doctrine”

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”John F. Kennedy

The United States House of Representatives has overwhelmingly voted against funding the Fairness Doctrine. This was presented as an amendment to the Financial Services and General Government Appropriations Act by Congressman Mike Pence.

Score another victory for the First Amendment.

Is There A Case For Impeaching Dick Cheney ?

Bruce Fein, a conservative who served as Deputy Attorney General under Ronald Reagan, and who has been associated with groups such as the American Enterprise Institute, makes the case at Slate:

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president’s insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney’s multiple crimes against the Constitution clearly qualify.

Fein then goes on to catalog what he thinks should be some of the areas of inquiry of a possible impeachment move:

The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president’s say-so alone, a frightening power indistinguishable from King Louis XVI’s execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.

The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.


Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.

He has advocated and authored signing statements that declare the president’s intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia.


The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.

These are all, I think, serious matters, and it’s encouraging to see conservatives like Fein recognizing and denouncing the legacy of the Bush-Cheney Administration, but I think there’s a serious question as to whether any of the things Fein mentions constitute impeachable offenses under the Constitution.

The Congressional impeachment power is set forth in Article II, Section 4 of the Constitution, which states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nothing that Fein mentions can be considered to constitute treason, which is the only crime defined in the Constitution, and there’s no evidence or allegation of bribery. So that leaves open the question of whether there are any high crimes or misdemeanors.

As much as a disagree with the Bush Administration, and as much as I think Cheney has done great harm to the Office of the Vice-President and the country, the fact remains that each one of the items that Fein cites in his article are, in the end, arguments over policy and the extent of Presidential power in a time of quasi-war. Unlike Watergate, where Richard Nixon at the very least participated in a conspiracy to obstruct justice, there’s no direct evidence of a crime having been committed. Even Clinton’s impeachment, which I think was a political mistake, involved commission of a crime, perjury under oath before a Federal Judge.

It’s clear that Fein, like many of us, disagrees with the Vice-President and thinks he went overboard in the years after 9/11. But that’s a policy disagreement, and that’s what elections are for.

I addressed this issue back in March when Chuck Hagel was speculating about President Bush’s impeachment, and this observation is equally applicable today:

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

The chance to deal with Dick Cheney was back in November 2004, but, thanks largely to the fact that Bush/Cheney was facing an incredible inept Democratic ticket, the Vice-President remained in office at the end of the day. Moreover, he’ll be out of office after noon on January 20, 2009. It’s not worth trashing the Constitution to get rid of him earlier.

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