Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
Opening Argument – Our Leaders Are Not War Criminals
by Stuart Taylor, Jr
Almost 60 House liberals, along with prominent lawyers, journalists, and retired officials and military officers, are lobbing an inflammatory charge–"war crimes"–toward a large number of the Bush administration’s most senior current and former officials and lawyers. These critics accuse them of approving torture and other illegal interrogation methods.
We are likely to hear a growing clamor for appointment of a special prosecutor, presumably by the next administration. And human-rights activists are already suggesting that their friends abroad should snatch and prosecute any former members of what they call the Bush "torture team" who dare visit Europe.
These critics are right to denounce waterboarding and some other interrogation methods that were approved at the administration’s highest levels as abusive, deeply damaging to the nation’s traditions and international standing, arguably torture, and profoundly unwise. Critics also make a strong case that under the Supreme Court’s broad interpretation of the Geneva Conventions two years ago in Hamdan v. Rumsfeld, the harsher methods violated international law.
But the critics are deeply misguided to call for criminal investigations of people who did their best to protect the country in dire times. The process would ruin lives and tear the country apart. And there is no evidence that any high-level official or lawyer acted with criminal intent.
Recent Supreme Court Decisions Show:
by Stuart Taylor, Jr.
Justice John Paul Stevens, the 88-year-old dean of the Supreme Court’s liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a “well-regulated militia” and “the right of the people to keep and bear arms,” protects an individual’s right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives’ long-professed devotion to “judicial restraint” and to the Constitution’s “original intent.” Joined by the other three liberals, he accused the majority of casting aside “settled law” and plunging into the “political thicket.”
Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals’ analysis of the Second Amendment’s language and history–so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to “pronounce the Second Amendment extinct,” he said. Scalia dismissed as “particularly wrongheaded” their reliance on a 1939 precedent; slammed as “bizarre” their parsing of the amendment’s language; whacked as “wholly unsupported” their discussion of English history, and said that Stevens “flatly misreads the historical record” of the Framers’ era.
The two blocs came close to calling each other hypocrites. Are they?
Opening Argument – Bush and the Justices Behaved Badly
by Stuart Taylor, Jr
Our Constitution works best when its custodians–the president, Congress, and the judiciary–behave well. In the matter of suspected "enemy combatants," all three have behaved badly. That’s why the Guantanamo Bay prison camp has been such a running sore. Even if Guantanamo ends up being closed, the human-rights and public-relations debacles that it symbolizes will continue until a new president and Congress take a grown-up approach to some extremely thorny problems.
Problems such as: What should we do with a Guantanamo detainee who, the best available evidence suggests, is probably a jihadist bent on mass murder but who cannot be convicted of any crime?
Don’t hold your breath waiting for a clear answer from the Supreme Court, which has asserted its supremacy in such matters–while raising more questions than it has resolved–in three cases, culminating in its big 5-4 ruling on June 12 that Guantanamo detainees have a right to broad federal judicial review of their petitions for release.
The Bush administration has perpetuated a global scandal since 2002 by stubbornly refusing to provide these detainees–who could be locked up for life–with a fair opportunity to prove that they are innocents seized and held by mistake. Bush and a few of his top political appointees imposed these policies over objections from many of the military lawyers and other professionals whose expertise ordinarily helps shape presidential decisions and helps entitle them to judicial deference.
(I will discuss the related scandal of brutal interrogations in a future column.)
Congress, after years of passive abdication, partly ratified the administration’s detention policy and sought to overrule contrary Supreme Court decisions in two laws that Republicans rammed through with little deliberation in late 2005 and October 2006.
Overplaying Its Hand
by Stuart Taylor, Jr.
When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had
When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush White House have done so often, they overreached.
As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration "badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis. In effect, that’s what happened last week when the court ruled in Boumediene v. Bush. If ever there was proof of the adage "hard cases make bad law," this is it.
Historicall…
Gay Marriage by Judicial Decree
by Stuart Taylor, Jr.
I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."
So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.
First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."
This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.
Lawsuits That Benefit Only Lawyers
by Stuart Taylor, Jr.
Now and then events converge to remind us of how often plaintiffs’ lawyers pervert our lawsuit industry for personal and political gain, under the indulgent eyes of judges, without rectifying any injustices, at the expense of the rest of us.
We have recently witnessed the spectacle of three of the nation’s richest and most famous plaintiffs’ lawyers heading to federal prison for various criminal frauds. More on them later. First, let’s consider an especially egregious case that the Supreme Court allowed on May 12, for lack of a quorum, to move ahead in lower federal courts. These consolidated lawsuits, which are seeking more than $400 billion from companies that did business in South Africa during apartheid, score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:
• The lawsuits will do victims of wrongdoing little or no good.
• They will penalize no human being who has done anything wrong.
• They will deter more conduct that is beneficial than harmful.
• The legal costs and any damages will come at the expense of the general public.
• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.
A weakly reasoned federal Appeals Court decision in the apartheid case has the additional defects of thumbing its nose at the Supreme Court and insulting the current, democratically elected government of South Africa, which is led by victims of apartheid.
American Isuzu Motors v. Ntsebeza is a class action purporting to represent all of the more than 20 million black South Africans who were held down by the brutal apartheid regime between 1948 and 1994. The claimed $400 billion would come from more than 50 of the big American and multinational companies that usually end up in the dock when plaintiffs’ attorneys are looking for deep pockets to pick.
Voters: Racism Is Not the Problem
by Stuart Taylor, Jr.
Is Barack Obama–now closer than ever to winning the Democratic nomination–nonetheless at a political disadvantage because of white racism, or "racial fears," or "race-baiting," or racial "double standards," as some commentators have suggested?
The evidence indicates otherwise, as it pertains both to this election and more broadly to the perennial tendency of many in the racial-grievance groups, the media, and academia to exaggerate how much white racism remains and its impact on African-Americans.
But many of the voters who have been unfairly tarred as racist do have a different flaw that Hillary Rodham Clinton and John McCain are working especially hard to exploit: ignorance of elementary economics and other things every high school graduate should know, which accounts for the low quality of the debate on issues ranging from the gas tax to trade to the budget.
More on voter ignorance later. First, let’s examine the notion that white racism, or efforts to fan it, underlie Obama’s recent difficulties in winning over middle-class white voters.
"It is an injustice, a legacy of the racist threads of this nation’s history," The New York Times declared in an April 30 editorial, that Obama was so widely called upon to repudiate the Rev. Jeremiah Wright while the media have given much less attention to McCain’s courtship of an equally bigoted white, far-right Texas pastor named John Hagee. The editorial pre-emptively condemned as "race-baiting" any campaign ads showing Wright in action. Times columnist Frank Rich and PBS commentator Bill Moyers voiced similar complaints. And Steve Kornacki wrote in the April 29 New York Observer that Wright was being and will be "used to stoke racial fears and prejudices about Mr. Obama."
Interrogation: Fixing the Law
by Stuart Taylor, Jr.
Amid the new round of headlines about the Bush administration’s use of extremely harsh methods–some say torture–to interrogate suspected terrorists, the most important question is getting the least attention.
That question is how we should revise our laws to govern future interrogations, especially those of newly captured terrorism suspects who seem especially likely to have potentially lifesaving information.
Debate currently focuses on whether evidence obtained through highly coercive methods should be used in military commission trials of those accused of being Qaeda leaders,
and whether President Bush and his top national security aides should be investigated for war crimes for approving those methods.
My answer is no to both questions. But looking forward, the key to a decent, effective, democratically legitimate interrogation policy is for policy makers and citizens to think hard about an agonizing choice.
What would we want done the next time the CIA catches someone such as Khalid Shaikh Mohammed (KSM, in official shorthand)? There is no good answer. But we should be able to improve on the disastrous legacy of Bush, whose presidency brought us the horrors of Abu Ghraib and the "renditions" of at least two wrongly suspected men to be tortured in Syria and Afghanistan.
The March 2003 capture of KSM in Pakistan was as close to the hypothetical "ticking bomb" situation as we have come in the real world. Although the CIA did not know of any imminent threat, it did know that KSM was the architect of the 9/11 attacks and was Al Qaeda’s chief of operations. As such, he probably knew more than anyone else alive about any planned attacks and where to find other key terrorists.
Judgment and Character Are Paramount
by Stuart Taylor, Jr.
"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."
So said British statesman Edmund Burke in his famous 1774 speech to the electors of Bristol. Similarly, James Madison wrote in Federalist 57 that voters should choose the candidates "who possess most wisdom to discern, and most virtue to pursue, the common good of the society."
Wise counsel, albeit forlorn in today’s campaign world in which most people-especially primary voters-back the candidates who are most shameless in sacrificing their judgment to the voters’ opinions.
Burke and Madison might well have approved the judgment-focused questions that pro-Obama journalists have so furiously excoriated moderators Charles Gibson and George Stephanopoulos, of ABC News, for asking at the April 16 debate between Barack Obama and Hillary Rodham Clinton. The Washington Post‘s Tom Shales accused the two of "shoddy, despicable performances." The New Yorker‘s Hendrik Hertzberg said that they had committed "something akin to a federal crime." The New York Times‘s David Carr called it a "disgusting spectacle."
Such commentators were especially livid that for much of the first half of the two-hour debate the moderators bored in on Obama’s gaffe about "bitter" laid-off small-towners who "cling to guns or religion or antipathy to people who aren’t like them"; questioned his closeness to the Rev. Jeremiah Wright through many years of Wright’s anti-American, white-bashing rants; and brought up his more glancing connection to William Ayers, a University of Illinois professor who was a Weather Underground leader and (by his own admission) bomber almost 40 years ago.
Reforming the State Secrets Privilege
by Stuart Taylor, Jr.
Among the legal issues over which the Bush administration and its congressional critics are stalemated in the war on terrorism is the so-called state secrets privilege. The case of one Khaled el-Masri illustrates the need for carefully balanced congressional reforms during the next administration to mitigate the privilege’s harsh effects on deserving plaintiffs-and on the national image.
In a petition filed on April 9 with the Inter-American Commission on Human Rights, this apparently innocent German citizen of Lebanese extraction described a harrowing five-month ordeal at the hands of Macedonian and then U.S. agents who mistook him for a Qaeda operative. While el-Masri was on a vacation trip, according to the petition (drafted by the American Civil Liberties Union), Macedonian agents abducted, isolated, and harshly interrogated him for 23 days, then brutally beat him while handing him over to a CIA "rendition team." The CIA agents in turn allegedly beat, stripped, and drugged el-Masri and flew him to a secret prison in Afghanistan, where he was held incommunicado for more than four months, harshly interrogated, and treated inhumanely. Finally he was blindfolded again, flown to Albania, and released in the dead of night. El-Masri’s allegations draw plausibility from the government’s failure to deny his factual claims.
The second apparent victimization of el-Masri came when the government denied him compensation or apology for this grotesque mistreatment. It chose instead to hide behind the state secrets privilege, persuading the courts to dismiss el-Masri’s lawsuit against former CIA Director George Tenet and other officials because it would require the agency to admit or deny the existence of a clandestine CIA activity, including highly classified details such as the persons, companies, or governments involved. The Supreme Court declined in October to take up el-Masri’s last appeal.