Category Archives: Atlantic

Stuart Taylor, Jr.’s The Atlantic media appearances.

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“Issue Ads” and Common Sense

by Stuart Taylor, Jr

The Atlantic

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election—or both. Seeking to determine which purpose predominates—the focus of the current debate—is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

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Terrorism Suspects and the Law

by Stuart Taylor, Jr

The Atlantic

What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?

Under the Bush administration’s approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them—which can be obtained through coercive interrogation—and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture—and, in a few cases, to cause death.

By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government’s problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.

The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.

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“Rape” and the Navy’s P.C. Police

by Stuart Taylor, Jr

The Atlantic

This is a story about a 23-year-old African-American midshipman who has limitless potential to serve his country but now faces a grave risk of seeing his Navy career derailed because of a bogus rape charge by a white woman whose violations of Navy rules were worse than his.

Lamar Owens Jr., the star quarterback, captain, and MVP of the Navy football team through the 2005 season, was resoundingly acquitted of rape last July 20, after the evidence presented to a military jury of five naval officers showed clearly that his sexual encounter with a female midshipman six months before was consensual and that the rape prosecution was a travesty.

More broadly, this is a story about how overreaction to the bad old days when real rape victims were not taken seriously has fostered a politically correct presumption of guilt in many rape cases, leading to wrongful prosecutions of innocent men and, probably, the convictions of some.

In the now-infamous Duke lacrosse rape fraud, the falsely accused men are white, the lying accuser is black, and racial demagoguery has fueled the prosecution. In other cases, such as that of Lamar Owens, the races have been reversed and suspicions of racially selective prosecution muted. In most, the men and women have been of the same race.

Owens endured a court-martial that should never have been convened, in the face of powerful evidence of innocence, thanks to the "leadership" of the Naval Academy’s superintendent, Vice Adm. Rodney Rempt. He has led a much-publicized crackdown on sexual assault and harassment, but has badly overshot the mark.

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A Right to Keep and Bear Arms?

by Stuart Taylor, Jr

The Atlantic

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms"—not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia’s uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

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Choosing the Next Attorney General

by Stuart Taylor, Jr

The Atlantic

This is not a prediction that Alberto Gonzales will be driven from office because of the incompetence and untruthfulness recently manifested by the botched firings of eight U.S. attorneys and the multiple misleading and inconsistent explanations thereof. Even if President Bush’s buddy hangs on until 2009, the Senate should henceforth reject any attorney general nominee whose only outstanding qualification is his or her relationship with the president. Democrats who want to run Gonzales out of town should also pledge that they will never again support a nominee of either party who is as ill-qualified as Gonzales is or—for that matter—as Robert F. Kennedy was in 1961.

Hindsight shows that RFK turned out to be a pretty good AG in many ways. (Approving FBI wiretaps of Martin Luther King Jr. was not among his better ideas.) But as of 1961, his main qualification was that he was the president’s brother.

The Justice Department, which employs 110,000 people, is entrusted with advising the president and other federal officials on the limits of their powers; safeguarding our civil liberties; evenhandedly enforcing laws on terrorism, national security, civil rights, the environment, white-collar crime, antitrust, and narcotics; choosing judges; and running the FBI and the federal prison system.

Its prosecutors have “more control over life, liberty, and reputation than any other person in America,” as then-Attorney General (and later Justice) Robert Jackson said in a famous 1940 speech to an assembly of U.S. attorneys.

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The Supreme Court: Place Your Bets

by Stuart Taylor, Jr

The Atlantic

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.