May 22, 2011
An Unfair Attack on Goodwin Liu
Many have criticized the Republicans in the Senate for their refusal to allow Associate Dean Goodwin Liu to be considered for a nomination to the United States Court of Appeals for the Ninth Circuit. (See especially Professor Geoffrey Stone’s analysis.)
The charges against him often revolve around a few quotes from his earlier statements. The Wall Street Journal writes, for example:
On Mr. Alito, [Professor Liu] was nastier: "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse," Mr. Liu said in written testimony. Charming stuff. Mr. Liu has since kinda-sorta suggested contrition by saying his statements were perhaps "unduly harsh and provocative," but he isn't disowning the legal analysis.
The fact is that Dean Liu made this statement after reviewing a memo written by now-Justice Alito in 1984. That memo provided a foundation for the characterization.
Here is an excerpt from Dean Liu’s testimony to the Senate in 2006:
Judge Alito has looked skeptically upon government power in some cases involving free speech and religious liberty. But in his record as a whole, those decisions are exceptions to a disturbing pattern of deference toward the use of government power against individuals. Perhaps the most troubling aspect of this pattern is Judge Alito's cramped reading of the Fourth Amendment's prohibition on unreasonable searches and seizures, a vital safeguard that grew directly out of colonial resistance to abuses by the Crown. In his career, Judge Alito has never taken a position more receptive to individual privacy or security than the position taken by his colleagues on the same panel.
A. POLICE USE OF EXCESSIVE FORCE
The Fourth Amendment right against unreasonable seizures prohibits police from using excessive force in an arrest, detention, or investigatory stop. Judge Alito has taken a very narrow view of what constitutes excessive force, beginning with the fifteen-page Justice Department memorandum he wrote in 1984 concluding that the use of deadly force against a fleeing unarmed suspect does not violate the Fourth Amendment.
The memorandum examined a case in which Memphis police officers in 1974, responding to a burglary complaint, arrived at a house, heard a door slam, and saw someone running across the backyard. The suspect reached a fence, at which point an officer called out "police, halt." When the suspect began to climb the fence, the officer shot him in the back of the head, killing him. The suspect, Edward Garner, was an eighth-grader, fifteen years old, 5'4" tall, 100 to 110 pounds, and black. Police found a purse and $10 taken from the house on his body. It was undisputed that the officer believed Garner was unarmed. The sole justification offered for the killing was to prevent escape.
As the Los Angeles Times reports, the Supreme Court ruled in 1985, by a vote of 6 to 3 against the view that now Justice Alito preferred:
"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.
... A year later, however, the Supreme Court used the same case to set a firm national rule against the routine use of "deadly force" against fleeing suspects who pose no danger.
"It is not better that all felony suspects die than that they escape," wrote Justice Byron White for a 6-3 majority in Tennessee vs. Garner. "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."
The 4th Amendment forbids "unreasonable searches and seizures" by the government, and the high court said that killing an unarmed suspect who was subject to arrest amounted to an "unreasonable seizure."
Said White: "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."
May 10, 2011
Fred Korematsu's Lawyer Now Federal District Court Judge
Federal Magistrate Judge Ed Chen, who worked on Fred Korematsu's coram nobis team, has been confirmed by the United States Senate to an Article III Judgeship in the Northern District of California Federal District Court. Judge Chen now becomes only the second Asian American ever to serve as a federal district court judge in the Northern District of California, after the appointment of Judge Lucy Koh last year.
January 05, 2011
Wade Chow for San Francisco District Attorney
Wade Chow is a brilliant, kindhearted, charismatic, ethical, and strong prosecutor. He is a veteran prosecutor, having prosecuted cases as a San Francisco Assistant District Attorney for 14 years. He is also a real progressive, very much in the mold of Attorney General Kamala Harris, also a brilliant, strong prosecutor. He heads the Gang Violence Unit of the S.F. District Attorney's office--an issue of obvious importance to all the people of the area.
Many of the leading candidates for D.A. have never prosecuted a case.
The lovely story from a comment on a story about Wade Chow's talent is telling:
At Yale Law School, they have a mock trial event called "Barrister's Union." A third-year in charge one year was working with some students learning the ropes, including my friend. At one point, he turned to my friend and said something like: Watch Wade. That's how you're supposed to do it.
Wade Chow is a classic dark horse candidate.
City insiders know him, cops and robbers know him, and he's got friends and former classmates in very high places throughout the state and country. But as far as San Francisco's general populace goes, Chow has been happy to let others have the limelight so long as they as a team can do the people's work effectively.
December 05, 2010
The Misleading Metaphor of Political "Capital"
A folk belief in contemporary politics is the notion of "political capital." The idea is that a political leader begins with a certain amount of "political capital." The leader is well-advised, the belief goes, to shepherd that capital well, deploying it in careful measures only towards the highest aims of that leader. In deploying it, one trades that capital for the hope of achieving one's highest aims.
The necessary corollary of this approach is that a leader avoids applying herself to anything other than her highest aims. Everything else, even if desirable, must be sacrificed, so as not to use up one's political capital. Thus, if one wants health care, one should not try to do too much for gay rights.
I believe that this approach is usually wrong. Applying one's power towards an end might in fact generate more power, demonstrating to the other side the power of a leader's constituents, and the strength of her resolve. It also generates goodwill among one's followers, necessary to fight the political battles ahead.
September 12, 2010
Editor of Leading American Newsmagazine Reveals Contempt for Muslim-Americans
In this post to his New Republic blog, Martin Peretz, Editor-in-Chief of The New Republic, and (apparently and quite surprisingly) Lecturer in Social Studies at Harvard University:
1. seems to encourage "rall[ies] or demonstration[s] in America aimed at Muslim or Arab interests or their commitments to foreign governments and, more likely, to foreign insurgencies and, yes, quite alien philosophies";
2. observes what he describes as "the increasingly Islamicized but non-practicing Christian and democratic sovereignties of Europe";
3. claims that "Liberal political theory has virtually ignored the philosophical, legal and ethical questions posed by the threatening demographics of Europe."
4. suggests that Muslims may be indifferent to death even in Islamic lands: "I want to believe that Muslims are traumatized by the unrelieved murders in Islamic lands."
5. suggests that few Muslims protest mass slaughter: "Frankly, the only demonstration against a mass killing (after all, they happen nearly every day) I've read about was last week in Pakistan when some 30-odd people, not designated and not guilty of doing anything except going to a Shia shrine were blown right then and there.... Why do not Muslims raise their voices against these at once planned and random killings all over the Islamic world? ... And among those Muslims led by the Imam Rauf there is hardly one who has raised a fuss about the routine and random bloodshed that defines their brotherhood. "
6. suggests that Muslims do not value their own lives: "But, frankly, Muslim life is cheap, most notably to Muslims."
7. questions whether Muslim Americans merit First Amendment protections because they are likely to abuse such protections: "So, yes, I wonder whether I need honor these people and pretend that they are worthy of the privileges of the First Amendment which I have in my gut the sense that they will abuse."
August 29, 2010
Fall Elections Might Reduce Number of Women in Congress
The L.A. Times reports that the prospect of Republican successes in this fall's Congressional races will likely reduce the number of women in Congress:
With this fall's midterm elections, the number of women serving in Congress could drop for the first time in a generation — a twist on a political season many had dubbed "the year of the woman."
If large numbers of Democratic incumbents lose in November, as expected, many women could be replaced by men. Female candidates tend to do better in Democratic years, and 2010 is shaping up as a successful year for Republicans.
Women now hold 90 seats in Congress: 69 are Democrats and 21 are Republicans. After the November election, Congress could end up with as many as 10 fewer female members, prognosticators now say, the first backslide in the uninterrupted march of women to Washington since 1978.
...In fact, just four women are among the GOP's 46 "Young Guns," as the party calls its frontline challengers who are considered future leaders.According to the Wikipedia , only 17 percent of our current Senate is female; remarkably, only 17 percent of our current House is female as well.
May 05, 2009
Dean Harold Koh, Protecting America, and Protecting Liberty
When Ed Meese, Alfred Regnery,
Grover Norquist, Phyllis Schlafly, and Richard Viguerie join forces to come out swinging against someone, perhaps that means that they are afraid of that
Ten right wing leaders, including the five mentioned above, have launched an attack on Yale Law School Dean Harold Koh, whom President Obama nominated to serve as the Legal Adviser to the State Department.
It is important to correct some of the misstatements about Dean Koh’s views in this right wing attack.
First is the most outrageous claim: that Dean Koh would bar the United States from protecting Americans:
Koh favors a flat ban on the United States government ever taking action to prevent American citizens from severe and imminent threats to national security. Koh opposes the very idea that American government officials should act to promote what they perceive to be our national self-interest.
No citation is offered for this claim. The reality, of course, is otherwise. Dean Koh’s 1990 book was titled The National Security Constitution, and it described the way that the three branches could work together to protect the country. More recently, Dean Koh has written: “At the dawn of the post-Cold War era, the international law rules for using force seemed pretty clear: One state could lawfully breach another’s territorial sovereignty only if one or more of three conditions obtained: response to aggression, self-defense, or an explicit U.N. Security Council resolution.” On American Exceptionalism, 55 Stan. L. Rev. 1479, 1515 (2003).
Second, they claim that Dean Koh would threaten American free speech.
He objects to America’s “distinctive rights culture,” which he complains gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.”
Dean Koh was once Assistant Secretary of State for Democracy, Human Rights, and Labor. In that position, he championed free speech throughout the world, and denounced political repression. His writings have never shown anything but admiration for our speech tradition. The characterization is misleading, almost to the point of disingenuousness. Dean Koh never “complains” about our protections for speech and religion. The full quote from Koh’s article is instructive: “By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia.” Id. at 1484. (Note that the right wing critics' characterization neatly excised the reference to "nondiscrimination based on race" from the original quote.) Dean Koh has been a steadfast champion of equality, free speech, and freedom of religion.
Third, they claim that Dean Koh “favors foreign law over American law” and “wants to impose on us the views of foreign and international bureaucrats.” This has been debunked by many people, including Duncan Hollis and Chris Borgen. Dean Koh shows respect for international law, as does the U.S. Constitution; consider that document’s own words, in a sentence that has come to be known as the Supremacy Clause:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."
Fourth, they claim that he might support prostitution and do away with Mother's Day.
... he strongly supports a treaty that has been interpreted by the treaty’s own committee to create rights to abortion and prostitution, to have the government determine the pay scale of every job, and even to require the abolition of Mother’s Day.
Parts of this claim have been debunked by Beth Van Schaack. The reference is to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a treaty that has been ratified by 185 countries, including all OECD states, except the United States. The American Bar Association has long urged the ratification of CEDAW. Unless the ABA and 185 countries have a secret agenda to promote prostitution and eliminate Mother’s Day, this claim seems far-fetched. CEDAW became effective in 1981--proponents of its alleged agenda to promote prostitution and demote motherhood better up their game. (And by the way, Happy Mother's Day, Mom and Madhavi!)
Fifth, they claim that Dean Koh would “threaten a massive redistribution of wealth from American citizens to international left-wing activists.” This claim repeats the claim of Curtis Bradley and Jack Goldsmith in a recent op-ed complaining of a case challenging American and European companies who provided support to the Apartheid government in South Africa. Dean Koh has long supported the Alien Tort Statute (ATS), a statute enacted in 1789 as part of the First Judiciary Act (hardly a radical provenance). Like any tort statute, it gives the victim of a tort the right to sue the tortfeasor. Judge Shira Sheindlin’s 135 page decision in the case is careful and considered, not radical.
This has been a rebuttal of some of the unfair charges. It is far better to make an affirmative case for Dean Koh. Countless individuals have offered their testimony on Dean Koh’s behalf. A hundred law deans, hundreds of law professors, Ted Olson, and Kenneth Starr, for example, have all endorsed his candidacy for Legal Adviser. But more fundamentally, one might do well to consider the values expressed in his representation of Haitian refugees, many with AIDS, in the 1990s, as chronicled by Brandt Goldstein in Storming the Court. Consider as well the love for American leadership in the world that Dean Koh expresses in the same Stanford Law Review article that his detractors seek to twist into unrecognizable shape:
My second, bittersweet anecdote comes from my childhood. It is really the story that made me a human rights lawyer. My late father, Dr. Kwang Lim Koh, served as Minister to the United States for the first democratically elected government in South Korea. In 1961, a military coup overthrew the democratic government of Prime Minister Chang Myon, and Chang was taken into house arrest amid rumors that he would shortly be executed. To plead for Chang's life, my parents brought Chang's teenaged son to see Walt W. Rostow, then the Deputy National Security Adviser to the President. As my father recalled, Rostow turned to the boy, and told him simply, "We know where your father is. Let me assure you, he will not be harmed."
Rostow's words stunned my father, who simply could not believe that any country could have such global power, reach, and interest. The story so impressed my father that he repeated it on countless occasions as I grew up, as proof of the exceptional goodness of American power.
If anyone doubts Dean Koh’s commitment to freedom, one need only listen to his personal testament as to his credo on NPR’s “This I Believe” series, where he describes “The Bright Lights of Freedom.”
May 22, 2008
Kremlinologists Reactivated for Release of McCain Medical Records
On Friday, the campaign will allow a small pool of reporters access to the records from 7 a.m. to 10 a.m. Pacific time in a conference room at the Copper Wind Resort in Phoenix, near the Mayo Clinic Scottsdale. The reporters will be allowed to take notes but not remove or photocopy the records. Campaign officials said they were imposing the restrictions to prevent the actual records from wide dissemination.
McCain--a model of transparency.
May 20, 2008
Inaugural Poem 1992
Link: Inaugural Poem.
... Here on the pulse of this new day
You may have the grace to look up and out
And into your sister's eyes, into
Your brother's face, your country
And say simply
February 22, 2008
Were All Gitmo Interrogations Videotaped?
Last week, a team of faculty and students from Seton Hall Law School—the folks who've worked tirelessly for years to document the government's best evidence (PDF) against the Guantanamo prisoners—released a new report suggesting that the government has recorded all of the interrogations at Guantanamo. Using documents prepared by the government and obtained through Freedom of Information Act requests, the team established that all of the 24,000 interrogations conducted at the camp since 2002 were taped. This jibes with reports from the detainees themselves, who came forward to dispute CIA Director Michael Hayden's claim last winter that the videotaping had been halted in 2002.
It also makes perfect sense. If the government was making tapes to protect interrogators in the event of future legal action, there was no reason to stop. Hayden's claim last December that officials "determined that its documentary reporting was full and exacting, removing any need for tapes" defies logic. No matter how good reporting is, video would have been better. That's why the Army Field Manual for Human Intelligence Collection states a preference for videotaping interrogations: "[V]ideo recording is possibly the most accurate method of recording a questioning session since it records not only the voices but also can be examined for details of body language and source and collector interaction."