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Bring Sheik Mohammed's trial to D.C.

March 13, 2010

For reasons I have some difficulty appreciating, the city of New York has rejected Attorney General Eric Holder's plan to try Khalid Sheik Mohammed in Manhattan. True, the trial will be expensive, but much of the cost will be borne by the federal government, not the city hosting the trial. And true, the trial would once again make New York an enticing target for a terrorist attack, but New York is always an appealing target for attack.

GOP takes issue with Holder's signing of terrorism-related legal brief in '04

March 13, 2010

Senate Republicans attacked the attorney general Thursday for failing to disclose during his confirmation process last year that he had signed a 2004 legal brief in an important terrorism case.

Chief Justice Roberts is a big crybaby

March 13, 2010

The chief justice is a big crybaby. To listen to John Roberts, you'd think that mobs of pitchfork-waving Democrats had accosted a handful of trembling justices and demanded that they reverse themselves on the spot -- or else. Speaking to law students at the University of Alabama, Roberts said anyone is free to criticize the court. Except, apparently, not to the justices' faces. "There is the issue of the setting, the circumstances and the decorum," he said. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according to the requirements of protocol -- has to sit there expressionless, I think is very troubling." But why? Surely Roberts doesn't think that the justices are about to be intimidated by some congressional applause -- or even a law professor-turned-president criticizing their ruling. The State of the Union address is the occasion to discuss the most important issues facing the country. The Supreme Court ruling that President Obama said "reversed a century of law" and threatened to "open the floodgates for special interests...to spend without limit in our elections" certainly fits that bill. It was appropriate for the president to use the occasion to call on Congress to craft a legislative response to the decision -- even in the presence of its authors. Earlier, explaining why he is a no-show at the address, Justice Clarence Thomas cited the controversy over Justice Samuel Alito's head-shaking response to Obama's remarks. "One of the consequences is now the court becomes part of the conversation, if you want to call it that," Thomas said. Good: the court is and should be part of the conversation. Ronald Reagan, albeit in a less confrontational way, criticized the court's abortion-rights rulings in several State of the Union addresses. "To those who say this violates a woman's right to control of her own body: Can they deny that now medical evidence confirms the unborn child is a living human being entitled to life, liberty and the pursuit of happiness?" he said in 1988 -- with members of the court that disagreed with him sitting right there. For good measure, Reagan took a shot at the court's rulings on school prayer and called for a constitutional amendment on that subject, as well as on abortion. The State of the Union is, as Roberts sniffed, part "political pep rally" -- with the opposing teams each participating in their rival cheers. But it is also a ceremonial, even magisterial occasion of state, attended by members of the diplomatic corps and the joint chiefs of staff. It is fine for some members of the audience to cheer and incumbent on others to keep a poker face. In his forthcoming book, "Supreme Power: Franklin Roosevelt vs. the Supreme Court," former Bill Clinton speechwriter Jeff Shesol describes how Roosevelt toned down the confrontational language that appeared in earlier drafts but still used his 1937 State of the Union address to take the court to task for blocking New Deal legislation. "The judicial branch also is asked by the people to do its part in making democracy successful," Roosevelt said. "The process of our democracy must not be imperiled by the denial of essential powers of free government." Roosevelt, Shesol writes, was disappointed to look up and see that none of the justices were present. Apparently tipped off, or fearing that they would be the target of presidential criticism, they stayed away -- as Roberts might next year. That would, I think, be a mistake. If conservative justices boycott a Democratic president's State of the Union address, who, then, will be politicizing the court?

Author assumes guise of 10-year-old to punk famous

March 13, 2010

WASHINGTON -- Over the years, "Little Billy" learned much from the country's top minds.

Al-Qaeda seven were serving justice

March 13, 2010

Marc Thiessen argues today that Justice Department lawyers who worked on behalf of terrorism suspects in private practice were not "doing what John Adam did" in defending British soldiers incriminated in the Boston Massacre -- "representing accused criminals already in the judicial system." "Rather," he argues, "they have reached outside the judicial systems and dragged the terrorists in." These lawyers, Thiessen concludes, were not noble and their values are thus suspect and legitimately subject to examination. Thiessen has it backwards. The Bush administration dragged suspected al-Qaeda operatives, some of them captured far from conventional battlefields, to Guantanamo to avoid the reach of the law. Thiessen argues that the Geneva Conventions and not the full-throated rights afforded under our federal justice system would suffice to process these prisoners. But let's not forget that the Bush administration resisted even this modest semblance of process; White House Counsel (and later Attorney General) Alberto Gonzales famously called the application of Geneva to unlawful enemy combatants "quaint." Few people initially questioned the propriety of holding enemy combatants under the laws of war. And then years started slipping by as men who claimed innocence languished at the island prison. It's not as if American forces were capturing uniformed Nazi soldiers and simply holding them in Guantanamo until the end of hostilities. How is one to know that those turned over by bounty hunters in Pakistan or captured in a remote village in Bosnia are in fact enemy combatants and suspected terrorists? And how is one to judge in this unconventional war when hostilities have actually ceased? The possibility of indefinitely imprisoning an innocent person was never as real -- nor was the need for robust representation of those held captive ever as high. And yet the Bush administration resisted any and all legal accommodations to ensure that such an abomination would not occur. With congressional allies, it fabricated military tribunals and commissions that would have been laughable had they not been the only recourse for detainees. Time and again the Supreme Court struck down administration attempts at faux process. Finally, a majority of the justices concluded that nothing short of independent federal court review would serve the interests of justice. These important developments would not have occurred without the involvement of talented and dedicated lawyers willing to put their reputations on the line to fight for systemic justice. Some of these lawyers undoubtedly represented bad guys, but to attribute to the lawyers the malevolence of some of their clients or to question now their loyalty to the U.S. government is to misunderstand a lawyer's duty to the law. These aren't potential traitors lurking about the Justice Department. There are patriots just as worthy of praise as Adams himself.

A Protestant judge's voice

March 13, 2010

Earlier this week, The Post???s Robert Barnes asked the provocative question: ???Does President Obama???s next Supreme Court nominee need to be a Protestant???? Justice John Paul Stevens, nearing age 90, is the last member of the once-dominant American Protestant establishment remaining on the high court. His retirement would leave only Catholic and Jewish justices -- and leave the advocates of diversity in a quandary. If religious diversity is a factor in selecting the next nominee, we can imagine the opening statement. ???Mr. Chairman, thank you for this opportunity to talk to you about my Protestant identity, where it came from, and the influence I perceive it has on my presence on the bench. Who am I? I am a proud member of the old-boy network, born and bred in the gated estates and prep schools of the Northeast. Like many of the best immigrants to this great land, my ancestors took a hard journey on the Mayflower, before eventually making their fortune in railroad speculation. My Protestant identity was forged and closely nurtured by my family through our shared experiences and traditions -- sailing off the Vineyard, touch football on Thanksgiving, long evenings of quiet repression. For me, a very special part of my being Protestant is the cuisine -- peanut butter and grape jelly on white bread, lots of pork, meat on Fridays and those little wafers at communion???. ???America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way. That tension between the ???melting pot and the salad bowl??? is being hotly debated today. I prefer, by the way, plain iceberg lettuce. Sometimes arugula, when I???m in an adventurous mood. I am proud that my Protestant identity inspires how I live my life???. ???The aspiration to impartiality is just that -- it???s an aspiration because it denies the fact that we are by our experiences making different choices than others. Justice O???Connor has often been cited as saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases. I am not so sure that I agree with the statement. I would hope that a wise, Protestant man with the richness of his experiences would more often than not reach a better conclusion than someone who doesn???t know their fish fork from their salad fork???.??? I don???t imagine these remarks would be well received. But the prospect does raise some interesting questions. If diversity is an important value in choosing justices, why doesn???t America???s largest religious group deserve representation on the Supreme Court? Is it justified to punish Protestants for their past dominance by rending them voiceless? It is, in the end, a false issue. I suspect that most who want diversity in the courts are not so much interested in promoting diversity as in promoting liberalism. I also suspect that Justice O???Connor is exactly right. Impartiality in applying the law is the first duty and main measure of a judge, whatever his or her background.

D.C. mayor okays smoking permit for two events in District

March 13, 2010

The stogies will burn on St. Patrick's Day, thanks to legislation signed Wednesday by D.C. Mayor Adrian M. Fenty, one of the leading sponsors in 2006 of the city's smoking ban.

John Roberts gets it right (for once)

March 13, 2010

Chief Justice John Roberts is wrong about a lot of things ??? most things, actually ??? but he may be right when he suggests that he and his black-robed colleagues should give the State of the Union address a pass. Their presence looks like a tradition whose time has come and gone. ???To the extent the State of the Union has degenerated into a political pep rally, I???m not sure why we???re there,??? Roberts said Tuesday at the University of Alabama, elucidating the obvious. Politics? At the State of the Union? Let???s all pause for a moment while we get over the shock. Roberts was complaining about the moment in January???s speech when President Obama blasted the court???s anything-goes decision on campaign finance. Six justices were in attendance, including three who voted with the majority; Justice Samuel Alito couldn???t keep himself from mouthing the words ???not true??? and shaking his head. Much comment ensued. ???The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court ??? according to the requirements of protocol ??? has to sit there expressionless, I think is very troubling,??? Roberts said told a group of ???Bama law students. He???s got a point. Obama had every right to call the justices out for a decision that he (and, ahem, many others) believes was wrong. But, as The Post's Eva Rodriguez noted this afternoon, in such a political atmosphere it???s unrealistic to expect the targets of presidential wrath to sit like cyborgs, betraying not a hint of reaction. I would go further, and ask whether it is necessary, or even appropriate, for them to go at all. It???s not as if Alito did the full Joe Wilson and yelled ???You lie!??? or even ???You misinterpret the equal protection clause!??? He shook his head and muttered ??? and even in a setting of such high ceremony, some allowance has to be made for muttering. But really, what are the justices doing there anyway? The State of the Union is an occasion for the president to lay out his agenda. The Supremes??? work shouldn???t be affected by anything the president says. Their only role is as props, their presence a reminder that our government has a third, less visible, branch. A better way to bring home this civics lesson would be for the court to allow oral arguments and other proceedings to be televised. Then the nation would learn something. On State of the Union night, the justices can get together at the courthouse, order some takeout and watch the whole thing on the tube. They???ll be free to cheer and boo all they want, just like the rest of us.