Category Archives: National Journal

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A Judicial Decision That Plagues Obama

by Stuart Taylor, Jr.

National Journal

Before 9/11, judges had no power to entertain writs of habeas corpus (petitions for release) by enemy fighters taken into custody by U.S. forces overseas.

Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

That might still be the law had the Bush administration given the hundreds of suspected "enemy combatants" whom it sent to its Guantanamo Bay prison camp in and after 2002 a fair opportunity to show that they were innocents seized and held by mistake, as many apparently were, an almost inevitable feature of this war against terrorists who masquerade as civilians.

But instead, the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

These bad policies have led to muddled law. Understandably offended by President Bush’s approach and the black eye that it was giving America overseas, the Supreme Court deep-sixed Johnson v. Eisentrager and ruled for detainees in three cases culminating in a 5-4 decision last June asserting broad judicial power to hear petitions for release from Guantanamo.

In the process, the justices struck down parts of two recent acts of Congress and assumed unprecedented, open-ended, and potentially disruptive power to oversee the elected branches’ conduct of war. They left it to the U.S. District and Appeals Courts in the District of Columbia to make up detailed rules on an ad hoc basis.

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CIA Torture – And A Spanish Inquisition

by Stuart Taylor, Jr.

National Journal

"The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing…. One of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face…. I was then put into the tall black box for what I think was about one and a half to two hours…. It was difficult to breathe…. I had to crouch down…. The wound on my leg began to open and started to bleed…. I may have slept or maybe fainted. I was then dragged from the small box … and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators [poured] water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position…. I vomited. The same torture [was] carried out again…. I thought I was going to die."

These chilling excerpts only begin to sketch the horrors described in a leaked copy of a report to the CIA by the International Committee of the Red Cross, detailing its interviews with Abu Zubaydah (who is quoted above) and 13 other Qaeda terrorists at Guantanamo Bay in late 2006 about their interrogations in secret CIA prisons starting in 2002.

Laid out last month by journalist Mark Danner in a 13,000-word New York Review of Books article, the interviews paint an even uglier picture than I had imagined of the months of multiple, unrelenting torments that the CIA used to break "high-value" Qaeda detainees. Some of these CIA practices have become familiar. Others are detailed for the first time in the Red Cross report: smashing defenseless men against hard walls over and over again; forcing them to stand naked and cold with arms shackled over their heads for days at a time while urinating and defecating on themselves; and more.

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How To Deny Employees Free Choice

by Stuart Taylor, Jr.

National Journal

I don’t know whether it would be good for employees, or for the country, if millions more were unionized, as will eventually occur if Congress passes the Obama-backed Employee Free Choice Act, now the subject of a titanic lobbying battle focused on a handful of moderate senators.

I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part because the penalties for employers who fire and intimidate pro-union employees and stall unionization elections are too weak to deter such misconduct.

But I am very sure that the radical changes that the proposed law would make in long-established labor laws are overkill. The most publicized "card-check" provision would essentially end use of the secret-ballot elections that have been required (at the option of employers) for more than 60 years to determine whether a majority of employees want to unionize their workplaces. Even more alarming to some employers is another provision that would empower government arbitrators to dictate contractual terms when unions and management cannot agree.

These measures are not necessary to remedy the employer abuses of which unions complain. They would probably be bad for employees and employers alike, and they might kill countless jobs at a time when unemployment is already soaring.

The card-check provision would require an employer to immediately recognize as its employees’ collective bargaining agent any union that could persuade a majority of the workers to sign union authorization cards. Secret-ballot elections would be held only if requested by unions, which would have little incentive to do so.

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Let The Honest Talk About Race Begin

by Stuart Taylor, Jr.

National Journal

Dear Mr. Attorney General:

Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" — a topic about which we talk incessantly — was unworthy of the admirable public servant I believe you to be.

The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid of thoughtful contributions to racial dialogue.

You can do much better. Please use your bully pulpit in the future to cut through the usual cant and state some politically incorrect truths about race in America that would carry special weight if they came from you. That would require mustering the courage to take on the Democratic Party’s powerful racial-grievance lobby. But it would do the country a lot of good.

The one point that you developed in a bit of detail in the February 18 speech was especially silly: "Black history is given a separate, and clearly not equal, treatment…. Until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so-called ‘real’ American history."

Bosh. The reality is that our high schools and universities are quite clearly focusing disproportionate attention on black history.

The proof includes a poll published last year in which 2,000 high school juniors and seniors in all 50 states were asked to name the 10 most famous Americans, other than presidents and first ladies. The top three finishers were black: Martin Luther King Jr. (67 percent), Rosa Parks (60 percent), and Harriet Tubman (44 percent). So is the only living finisher, Oprah Winfrey (22 percent).

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Nobody’s Perfect, But Don’t Tell Obama Bashers

by Stuart Taylor, Jr.

National Journal

After many months of adoring media coverage and Democratic triumphalism, President Obama is now getting pasted by carnivorous columnists, angry activists, and House hotheads for every bow to bipartisanship, every deviation from liberal orthodoxy, and every tax-deficient nominee.

The problem is not that Obama is doing a bad job. For a new president beset with the most daunting combination of economic and national security nightmares in many decades, and with a recent run of bad luck, he’s doing his job quite well. Shepherding the $789 billion economic stimulus bill through the ideologically polarized Congress was no small feat. And for a man seeking to overcome determined Republican opposition without demonizing his adversaries, he hit the right notes (if too long-windedly) in his first prime-time presidential press conference on Monday.

The president’s political problem is that while he tries desperately to steer the storm-tossed ship of state off the rocks, partisans in both parties are reflexively acting out "a lot of bad habits built up here in Washington," as Obama told the press.

He stuck, despite a slip or two into tough rhetoric, to his conviction that fighting for his policy agenda and rejecting "the failed theories of the last eight years" does not require ascribing base motives to the opposition, disavowing any effort at compromise, or giving up on what some call his promise of "post-partisanship."

Obama also understands that a few party-line votes driven by clashing economic philosophies do not spell the doom of post-partisanship, which boils down to seeking common ground when possible and treating political adversaries with respect. Obama’s extraordinary overtures to Republicans, he explained, "were not designed simply to get some short-term votes. They were designed to try to build up some trust over time."

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Does The Ledbetter Law Benefit Workers, Or Lawyers?

by Stuart Taylor, Jr.

National Journal

This has been a good week, and may be a good year, for lawyers, civil-rights groups and others who think that America needs many more lawsuits to combat what they portray as pervasive job discrimination against women, minorities, the elderly, and the disabled.

Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.

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A Most Promising Start For Obama

by Stuart Taylor, Jr.

National Journal

Like a great many other Americans at this singular moment in history, I have rarely been so alarmed about the state of the world — and have never been so hopeful about the promise of a new president.

Standing amid hundreds of thousands of celebrants between the Lincoln Memorial and the Washington Monument at the "We Are One" concert on Sunday, and watching Barack Obama’s inaugural address two days later, my family and I felt the thrill that raised so many spirits. Despite the dark economic times, the wars, the terrorist threat, the health care mess, the impossibility of quickly surmounting any of these crises — despite even the overarching fear that America’s best days may be behind us — hope was ascendant.

No human being could possibly meet the soaring expectations that electrified those inaugural crowds. But our new president may have what it takes to uplift the country as much as any president could.

I worried in a pre-election column that Obama’s down-the-line liberal voting record and associations with some extremists did not give a centrist like me much confidence that he would "resist pressure from Democratic interest groups, ideologues, and congressional leaders to steer hard to the left."

But since then he has done much to fulfill the hope expressed in that same column that he might prove to be "the pragmatic, consensus-building, inspirational Obama who has been on display during the general election campaign."

He has chosen a talented, experienced, pragmatic team of national security and economic advisers who seem more focused on fixing what’s broken than on grinding ideological axes.

His retention of Bush Defense Secretary Robert Gates is one of several signs that he "does not want to be the guy who lost Iraq when it is close to being won," as Sen. Lindsey Graham, R-S.C., told The New York Times.

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Obama’s Dangerous Detainees

by Stuart Taylor, Jr

National Journal

News reports suggest that the Obama transition team may be pushing for an approach that could mean releasing within a year as many as 100 (or perhaps even more) Guantanamo detainees who appear to be dangerous but may not be prosecutable for any crimes.

In particular, a New York Times front-pager reported on January 13 that sources "said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States" of any of the approximately 250 Guantanamo detainees.

This seems to imply that Obama will either continue to rely on Bush’s legal arguments for continued detention without charges — arguments that many Obama supporters have assailed — or yield to the demands of left-leaning human-rights groups that he release any and all Guantanamo detainees who cannot be criminally prosecuted.

But the president-elect said on January 11, on ABC’s This Week , that he wants "a process that adheres to [the] rule of law [but] doesn’t result in releasing people who are intent on blowing us up." He also said that "many" detainees who "may be very dangerous" present special problems because "some of the evidence against them may be tainted even though it’s true." And Eric Holder testified on Thursday, during the Senate confirmation hearing on his nomination to be attorney general, that "I don’t think . . . we can release" people known to be dangerous.

What kind of process does Obama have in mind? If seeking a new detention law has been ruled out — a scoop that The Times attributed somewhat shakily to "people who have conferred with transition officials" — Obama would have only two options for dealing with the 100 or so apparently-dangerous-but-perhaps-not-prosecutable detainees.

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Inconvenient Facts And Detainee Abuse

by Stuart Taylor, Jr.

National Journal

"It is basically subject to perception. If the detainee dies you’re doing it wrong."

This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.

But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, "Interrogation practices and legal guidance must not be based upon anyone’s subjective perception" (emphasis added) but rather upon "definitive and binding legal analysis."

 

The overall effect of selective reporting by many critics has been to paint honorable former and current officials as a bunch of sadistic war criminals.

 

Remarkably, the 18-page report issued by the committee (headed "Executive Summary") does not mention Fredman’s vehement — and, in my view, quite plausible — denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.

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Too Much Law Guarantees Unfairness

by Stuart Taylor, Jr.

National Journal

It’s no secret that America’s public schools, health care system, and lawsuit industry — among other institutions — are broken. After decades of alarming reports and reform efforts, they still cost far more, and with worse results, than those of almost all other developed countries. And President-elect Obama’s hope of changing things dramatically for the better faces an uphill battle.

A big part of the reason, New York City lawyer-author-civic leader Philip Howard writes in a forthcoming book, Life Without Lawyers: Liberating Americans From Too Much Law, is that our institutions and their leaders are paralyzed by tangles of legal rules and diverted "from doing what we think is right" by fear of being unfairly hauled into court.

"We will never fix our schools, or make health care affordable, or re-energize democracy, or revive the can-do spirit that made America great," Howard writes, "unless American law is rebuilt to protect freedom in our daily choices." By this he means freeing ourselves from "the confusion of good judgment with legal proof."

 

"Washington is paralyzed," writes Philip Howard, by "decades of accumulated law, beyond the influence of anyone except special interests."

 

Reprising the themes of Howard’s best-selling Death of Common Sense in 1995, Life Without Lawyers also proposes some far-reaching remedies, designed in part to affirmatively define and protect the freedom of people in positions of authority to fulfill their responsibilities in their own way. To be published on January 12, its 191 pages are crammed with telling cases, anecdotes, and data. It brims with insights into how "rights" that were created to prevent "unfairness by those in authority" are now "guaranteeing unfairness to the common good."