Obama Continues to Disappoint Civil Libertarians

One of my favorite writers, Glenn Greenwald, is now at the Guardian. He continues to grill the current administration on issues dealing with civil liberties, war and terrorism. Unfortunately, outside of blogs and media outlets that deal primarily with civil liberties, the MSM really isn't interested in talking about these things. For that matter, most people don't really seem all that interested. His latest OpEd discusses the administration's strange secrecy practices, which seem to be let secrets out when it may help reelection and don't when it might hurt. I understand that there are legitimate security concerns, but it does seem odd to allow a Navy SEAL that was on that raid to publish an account of the mission, while John Kerry tells reporters asking about it to, "shut up and move on." Even more disturbing is how this administration has gone after whistleblowers at an unprecedented rate (double all of the previous administrations combined). Greenwald referenced a Mother Jones article that does a good job of highlighting some of the recent abuses. Is this healthy?

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Obama's Assault on Civil Liberties

I voted for Obama and think that he has done some significant things. I also think that he has failed in some regards and as time goes by, he is reminding me more and more of Jimmy Carter, in that he is a decent person and not a great president.

This op-ed is a week old, but I still think it makes some great points. First of all, I agree that he portrayed himself as someone that would correct some of the Bush era infringements on liberty. While I understand that for many voters, this isn't a top priority and with the economy struggling, he has his work cut out for him. That being said, I don't understand why he has expanded many o Bush's worst programs. The author doesn't pull any punches:

It's almost a classic case of the Stockholm syndrome, in which a hostage bonds with his captor despite the obvious threat to his existence. Even though many Democrats admit in private that they are shocked by Obama's position on civil liberties, they are incapable of opposing him. Some insist that they are simply motivated by realism: A Republican would be worse. However, realism alone cannot explain the utter absence of a push for an alternative Democratic candidate or organized opposition to Obama's policies on civil liberties in Congress during his term. It looks more like a cult of personality. Obama's policies have become secondary to his persona.

What will happen? The GOP certainly doesn't have any better alternatives. Will Democrats that care about these things call him to task? What about moderate voters? The author feels that civil libertarians may have had enough:

This calculation may be wrong. Obama may have flown by the fail-safe line, especially when it comes to waterboarding. For many civil libertarians, it will be virtually impossible to vote for someone who has flagrantly ignored the Convention Against Torture or its underlying Nuremberg Principles. As Obama and Atty. Gen. Eric H. Holder Jr. have admitted, waterboarding is clearly torture and has been long defined as such by both international and U.S. courts. It is not only a crime but a war crime. By blocking the investigation and prosecution of those responsible for torture, Obama violated international law and reinforced other countries in refusing investigation of their own alleged war crimes. The administration magnified the damage by blocking efforts of other countries like Spain from investigating our alleged war crimes. In this process, his administration shredded principles on the accountability of government officials and lawyers facilitating war crimes and further destroyed the credibility of the U.S. in objecting to civil liberties abuses abroad.

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Dearborn Responds

Mayor O'Reilly, a fine Irish-American

I missed this, but apparently the Mayor of Dearborn, Jack O'Reilly, wrote an open letter to "Pastor" Terry Jones before Terry's silly protest.

Click that link. It's a great letter; cogent, calm, well-put. Some highlights:

I watched you on television speaking about the Constitution and Dearborn, and it appears you need more information about both before you come to our city.

...

The Constitution says that your rights must be balanced with the rights of others under the same document. Your free speech rights do not allow you to trespass on the private property of others or prevent them from the Constitutional right to freely practice their religion. I am not just talking about Muslims but members of all faiths.

The members of the Christian churches on Altar Road asked me last week if they should cancel their Good Friday services because of your planned visit. I assured them that they should not because the Constitution does not allow you to violate their rights. I don’t know why you selected Good Friday but it wasn’t very considerate of the significant Christian services being held at that time. I assure you that you will not make them forfeit their services.

...

There is no Sharia Law in Dearborn, only Constitutional Law. Sharia Law is church- or faith-based law that is applicable only to the followers of that faith...The actual originator of the event you plan to hold in Dearborn, Frank Fiorello of the Fraternal Order of the Dragon, accepted my invitation to learn more about Dearborn, and after seeing the truth, he canceled his protest.

But, if you don’t believe that Dearborn follows the Constitution, here are some realistic facts for you. Businesses in Dearborn lawfully meet the diverse needs of our Greater Detroit area, but if Dearborn practiced Sharia Law, would we have ... more alcohol licensed bars and restaurants per capita than most other cities? None of that should be allowed under Sharia Law.

How about this? A business we boast about, the nationally known Dearborn Sausage, opened more than 60 years ago across the street from the first mosque in Dearborn and is famous for its sausages and spiral sliced hams. It is one of many meat packing operations in our City and no one has ever objected. [Sharia Law expressly forbidding pork; note added by me]

Dearborn is also famous for The Henry Ford Museum and Greenfield Village, where more than 1.5 million visitors come each year from across the country and the world to learn about the foundations of our American way of life.

I could go on, but you get the point. It's a nice letter. It plays Terry for the fool he is and in essence plays anyone small-minded enough to believe his or other reactionaries' hype and nonsense.

His closer is spot on: "As we work hard to balance your rights with the rights of others in Dearborn, you will be extended every courtesy during your visit – as long as you follow the law based on the Constitution’s protection of everyone’s rights. That should be a familiar statement to you."

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The Limits of Free Speech

Pastor Terry Jones seems to be giving Fred Phelps competition for the title of most offensive 'christian'. His latest stunt brings him to my state where he plans on staging a rally in front of a Dearborn Mosque against "the radical element of Islam." Local officals have expressed concern that things may get out of hand and have asked him to put of money to help pay for some of the massive amount of security that will have to be deployed. He has refused and there is a hearing scheduled later today to decide if he has to pay.

Not surprisingly, the ACLU has come out in support of the right of Terry Jones to protest and said that the government cannot impnge on someone's free speech rights. I can see both sides of this and the fact that Jones is so offensive makes it hard to support him in any way. This would be a security nightmare. Jones has a 1.2 million dollar bounty on his head from some Pakistani group and I am sure that there are many others that want him dead. On the other hand, with 'free speech zones' and other similar pratcices, are we seeing a gradual erosion of free speech rights? What kinds of constraints should the state put on groups when they want to protest? The Supreme Court has said time and time again, that content-based restrictions are unconstitutional, so does this amount to a de facto contetnt-based restriction?

Personally, I wish that the media and everyone else would ignore this guy, but that isn't going to happen. In the alternative, I would like to see a massive, peaceful, counter-protest.

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And justice for.....

I missed this last week, but the Obama justice department won a victory in their battle to prevent detainees from accessing the US courts and getting some semblance of due process. From the article:

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

Greenwald had this to say:

Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court. Back in the day, this was called "Bush's legal black hole." In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo. Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.

I am disappointed. Obama has done some really good things, but I really thought these policies would be curtailed or discontinued. I didn't expect this.

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Legal Advice

Republicans are once again in a tizzy regarding the rights of the accused.

This in Politico:

Congressional Republicans want to know whether the Pakistani-born American arrested in the Times Square car bombing plot was read his Miranda rights, with Sen. John McCain saying it would be a “serious mistake” if the suspect was reminded of his right to remain silent.

These guys act like one must be read their rights to actually obtain them. Seems to me that NOT reading him his rights might set up the accused for some sort of defense.

To the lawyers and soon-to-be lawyers at ATK: Am I missing something?

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For the Children...

Radley Balko has a thoughtful piece in this months Reason on how some prosecutors are treating the gorwing trend of 'sexting' and teens posting exlicit pictures of themselves. He points out how some jurisdictions are charging these teens as child pornographers where they could receive prison terms up to 10 years. As a parent, I would probably be pretty shoacked and angry if my kid were doing this, but I don't think the way to deal with a knuckleheaded, impulsive teen is to ruin their life with a child porn felony conviction.

The root disconnect, here, is that the law treats pre-pubescent sex crimes on par with crimes related to teenagers who are sexually mature. Fact is, teenagers become sexually mature years before it's socially or legally permissible to think about them that way. That they're then having sex is nothing new. Nor is the fact that teens make rash, emotional, spur-of-the-moment decisions. What's new is that they're able to document it all in ways that can quickly escape their control. What they need after the fact are responsible adults who can walk them through a poor decision, appropriately reprimand or punish them if necessary, but all while keeping things in perspective, and minimizing the long-term consequences for the teen. Dumping the kid into the criminal justice system has all the subtlety and precision of dropping an anvil on the problem from 40 stories above.

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"Assistance of Counsel"

About a month ago, on March 18, the State of Michigan acknowledged the 45th anniversary of Gideon v. Wainwright, in which the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys or lawyers.

I pale to use Wikipedia much, but they do provide a decent summary of the Gideon case and how he had to defend himself, the Florida courts at the time refusing to appoint him counsel. Copies of his handwritten petition to the SCOTUS is framed in many law firms today.

I bring this up for two reasons: first, there was a great report this morning on NPR about the dismal state of public/indigent defense systems across the U.S.; and second because I have the honor of being able to work on a state-wide revamp of Michigan's public defense system.

To drop a quick opinion here, the 6th amendment in my mind is one of our most important. It is central to our sense of freedom that no matter the circumstances, everybody gets at least one person to stand up for them against "the state." In Michigan, we are arguing that our 6th amendment right is in jeopardy. It's not enough to simply get someone to stand up for you. To honor the amendment right is to provide consistent, competent counsel, and not a hodge-podge of more than 83 different systems of indigent defense.

Enter the Michigan Campaign for Justice. This is a coalition of more than 40 (the number grows by the week) organizations who are banding together to rebuild a competent indigent/public defense system. It's an eclectic coalition involving all ends of the spectrum, from judges and law enforcement to the ACLU and the Citizens for Traditional Values. You know an issue is central to our sense of justice and freedom if the CTV and the ACLU can actually agree!

In June of 2008, the National Legal Aid and Defender Association (NLADA) conducted a year-long study of Michigan's system (results here), sanctioned by the Michigan State Senate via a resolution, and found "...that the state of Michigan fails to provide competent legal representation to those who cannot afford counsel in its criminal courts." Some lowlights:

• Michigan ranks 44th of the 50 states in public defense funding;
• Michigan is one of the highest ranking states in corrections spending, and expects to spend well over $2 billion this year;
• Michigan is one of only seven states that place the entire burden for funding trial-level public defense on its counties as an unfunded mandate;
• Forty-one of Michigan’s 83 counties currently use a low-bid, flat-fee contract system, deemed by national legal experts to be one of the worst solutions because of the ethical conflicts that it creates;
• In Detroit, five part-time public defenders spend an average of 32 minutes per case, handling 2,400 to 2,800 cases each, while the national standard for a full-time public defender is only 400 cases per year;
• District courts throughout the state often fail to provide counsel in misdemeanor cases;
• Some courts offer to let people get out of jail for time served if they agree not to ask for an attorney;

The study takes into account costs to taxpayers of an inadequate system, as well as socio-economic tolls.

For a bit more detail on Michigan's big bucket of Fail, take a look at the NLADA's report card for Michigan's system. It looks like W's Yale transcripts (cheap shot...sorry...).

At any rate, bills to correct this system are being drafted now. Apparently, Wisconsin and Minnesota have some "model" programs that Michigan is looking into. I am proud to be a part of working on this effort, and I will try to provide some updates and details as we work along trying to restore the crucial right to Michiganians.

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Habeas Corpus...Not for all of US.

Though I don't share Mike's complete disappointment with the Obama Administration, I am disgusted at the way he has handled some things. I was very hopeful that he would take a solid stance in regards to civil liberties and Constitutional rights. I was happy that he issued an order that paved the way for the closing of the detention facility at Guantanamo.

At that time, I had a cynical fear in the back of my mind that the Administration would just continue the same practices, just in other places, and that the closure was just good PR. It appears that this is at least partially true. I may not agree completely with Talk Left, but they do a great job covering civil liberty issues. They have been covering a case for the past few months where detainees being held in Bagram Air Base, Afghanistan, have challenged their status as enemy combatants by filing habeas petitions. The Obama Justice Department stated the same position as the Bush Justice Department and said that they have no right to do this. As many of you probably know, the US Supreme Court held that Guantanamo detainees should be allowed to challenge their unlawful combatant status. It doesn't take a huge stretch to apply this to the Bagram detainees.

The Obama Justice Department took the position that the situation was different and that they were being held in a war zone. While POW's captured as part of an ongoing war are not entitled to a hearing to challenge their captivity, some of the Bagram detainees are claiming that they were not captured in a war zone and were taken elsewhere and transported to the prison site, much as the detainees in Guantanamo. If this is the case, then they are entitled to some level of due process, certainly more than they are getting now. From the Talk Left entry:

The Bagram panels, called Enemy Combatant Review Boards, offer no such guarantees. Reviews are conducted after 90 days and at least annually thereafter, but detainees are not informed of the accusations against them, have no advocate and cannot appear before the board, officials said. "The detainee is not involved at all," one official familiar with the process said.

Fortunately, on April 2nd, a federal judge ruled that the detainees can challenge their confinement in US Court. Here is a link to the decision. Unfortunately, the Obama Administration is appealing this decision and insisting that this Bush policy should continue. From the NYT:

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

I tend to agree with Ms. Foster. I never thought that holding people indefinitely as unlawful combatants was good policy or Constitutional. It was one of many bad Bush policies that I was hopeful that Obama would change and I am disappointed that he feels it is necessary to continue.

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