Activist judge Roger Vinson's ruling makes George Washington unconstitutional

By Nicholas Wilbur

I'm not an ambulance chaser, nor am I a judge. I can't even claim sidekick status to a comic book superhero who rights the wrongs of America with his doctorate in constitutional law.

But riddle me this, Batman: If the president signed a law forcing every American to purchase a rifle and ammunition in preparation for a possible call to active military duty, but the Constitution specifically forbade forcing Americans to purchase ammunition, could a federal judge then overturn the entire law – including the rifle mandate – on the basis that only the ammunition portion of the law was illegal?

A judge in Florida has ruled against President Obama's health-care reform law, saying that the provision that forces Americans to buy health insurance is a breach of Congress' constitutional authority. He did not argue the illegality of the law's other provisions. He said only that the mandate (the ammunition provision, in this seemingly left-field metaphor) was unconstitutional.

Federal district judge Roger Vinson argued that, "[b]ecause the individual mandate is unconstitutional and not severable, the entire act must be declared void."

It would be easy to brand this 70-year-old, bachelor's degree-educated wannabe Tea Partier as a kook who admitted to relying on the legally insignificant analyses of a known hate group to craft his ruling. Rest assured, his education, his age, and his apparent bias do not play into my critique. Calling Vinson a geriatric Frankenstein pig fucker with shit for brains would not be a merit-based evaluation of his mental capacity, his overall intelligence, and his cognitive ability to perform the duties expected of a judge, which is why I'm not arguing that he's a pig fucker. I'm merely asking how a man tasked with interpreting the legality of public policy can denounce every aspect of a law on the basis that one aspect of it is, in his opinion, unconstitutional.

Rather than rule only against the mandate portion of the law, as was the expectation and the precedent set in a mirror ruling made by a federal judge in Virginia, Vinson, a Ronald Reagan appointee, instead threw out the entire law on the basis that all the reforms will fail without the mandate. Granted, President Obama's health-care law doesn't include a "severability clause" that would allow the judge to strike down a portion of the law without invalidating the entire law, but if Vinson believes the entire law is illegal, then why didn't he issue an injunction against the policy and immediately halt its implementation?

First of all, we must ask if the health-care law itself would be invalidated without the mandate, as that is the basis for Vinson's ruling. It turns out several states have created laws banning insurance companies from denying coverage based on pre-existing conditions. Also, Vinson did not rule that the provision in the law that allows children to stay on their parents' insurance plans until age 26 was unconstitutional. These provisions would still be in place without the mandate. They would still be legal.

It doesn't require a magnifying glass to read between the lines of Vinson's ruling. He's saying what even the president has said – that without the mandate, the bill would fail. But failure, in this sense, means it wouldn't generate the revenue predicted, it wouldn't achieve the coverage rates predicted, and it wouldn't lower costs for individual insurance consumers as predicted.

The question, however, is not whether or not the bill is effective. It is the job of Congress, of lawmakers, policy experts, and legislative analysts to determine the effectiveness of a bill. The question is, when did it become the job of a judge, of an interpreter of the law, to decide effectiveness?

We talk often, and we often talk vehemently, about "activist" judges. Any leftist who angers the right is an activist judge. Any right-winger who pisses off the left is an activist judge. In most cases, these are ideological critiques, not merit-based evaluations.

This, I think, is one of the few cases where the "judicial activism" argument holds water. It would not be inappropriate for a federal judge to air his personal views that health-care reform would be cheapened without a mandate. We wouldn't balk at the observation, as the president and nearly every Democrat in Congress has already admitted as much. But is it appropriate that a judge has shot down an entire law based on the personal evaluation of how effective a law would be without the one portion he has deemed unconstitutional?

That's the question. I'm open to critiques.

As for my seemingly unrelated metaphor of the rifle and ammunition mandates, that actually happened. It was, in fact, one of the framers of the Constitution, George Washington, who forced every American to arm himself. In a way, this was health-care insurance, 1770s-style. No judge ruled it unconstitutional. Probably few citizens deemed the mandates unjust. It was logical to protect oneself. And in that sense, its no different than modern health-care reform.

(Cross-posted from Muddy Politics.)

Right-wing Republican judge rules health-care law unconstitutional

By Michael J.W. Stickings

So what else is new?

Republican-appointed judges, embracing conservative judicial activism (even if they would deny it), are ruling against the Affordable Care Act and basing their decisions on spurious legal reasoning:

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so "inextricably bound" to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

"The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker," Judge Vinson wrote.

How odd that Vinson's words are a metaphorical version of the standard Republican talking point -- repeal and reform, even if Republicans have no alternative plan and no intention of introducing one anytime soon. (It's important to note, too, that Vinson based his decision to a great extent on the views of the right-wing, theocratic Family Research Council, hardly an impartial source.)

Ultimately, the law will be reviewed by the Supreme Court, so it doesn't much matter how these lower courts rule. Although, of course, the Supreme Court, with a 5-4 conservative majority, is partisan and, when it wants to be, activist. (Kennedy will likely be the swing vote, as usual.)

But Steve Benen makes some excellent points in putting this latest ruling into perspective:

First Update: Note that when Judge Henry Hudson of Virginia, a Bush appointee, reached a similar conclusion in December, in a ruling that no one seemed to think made any sense, he said the individual mandate is unconstitutional, but left the rest of the law intact. Reagan appointee Vinson, however, took a far more activist approach, striking down a massive piece of legislation because of one provision.

Republicans are thrilled, of course, because activist court rulings are to be celebrated, just so long as it's activism the right can agree with. 

Second Update: It's also worth emphasizing that two Republican-appointed federal district court judges have now found that the individual mandate -- an idea Republicans came up with -- is unconstitutional. And while that's important, let's not forget two other federal district court judges, appointed by Democratic presidents, came to the opposite conclusion.

Indeed, overall, about a dozen federal courts have dismissed challenges to the health care law.

In other words, when you hear on the news that "courts" have a problem with the Affordable Care Act, remember that it's actually a minority of the judges who've heard cases related to the law.

Aside from the obvious activism on display here, that last point is crucial. Only two judges, both Republican-appointed, have ruled against the mandate (the second also against the entire piece of legislation). The media focus disproportionately on these negative rulings, rulings that would seem to validate the Republican position, but the reality is that the law, including the mandate, has thus far been upheld everywhere else.

There's hardly any guarantee that the Supreme Court will uphold the law, but claims of the Affordable Care Act's demise are greatly exaggerated.

Nullification nonsense: How conservatives mistake the Constitution for the Articles of Confederation

Guest post by Publius 

Publius has lived in and spent most of his life thinking about Washington, D.C. He is an attorney, an avid sports fan, and the editor of The Fourth Branch.

(Ed. note: This is Publius's second guest post for us. You can find his first, on George Will and "engaged justices," here. -- MJWS)

**********

Many have noted the irony of conservative politicians running on a platform of undying love for and understanding of the Constitution while simultaneously advocating the repeal of many of its significant provisions. Vocal elements of the conservative base, primarily centered on the Tea Party and pundits on Fox News, have advocated for repealing part of Section 1 of the 14th Amendment (citizenship) and all of the 16th Amendment (income tax) and 17th Amendment (direct election of Senators). Those would be significant changes to the nation's governing text, but they pale in comparison to the most recent calls for change involving nullification.

The so-called "Tenther" movement holds that the Congress continues to pass "unconstitutional" laws that are beyond Congress' power to enact, and that the states have the right, under the Tenth Amendment, to reject all such laws. The legal theory behind the Tenther movement isn't novel, but it is one that has been soundly rejected -- politically, legally, and militarily. The doctrine was used by the South to justify its continued use of slavery prior to the Civil War. It led to the South invoking nullification's close relative, secession, as the ultimate exercise of state sovereignty. Military elimination of the doctrine and the racist policies supported by the doctrine cost the lives of over 600,000 Americans. The Constitution itself was born following a failed history with a legal document codifying the concept of nullification -- the Articles of Confederation.

Given the racist past of nullification and secession, and the severe strain both policies placed on the nation and the Constitution as a whole, one would think the conservative movement would stray far from such policies. Instead, nullification has found new life and even a place on the ballot in many states. In Oklahoma, Missouri, Arizona, and Colorado, voters have been asked to "nullify" the recent health-care law, and nullification passed in each of those states but Colorado. Virginia recently passed a law through the legislature "repealing" health care with respect to that state. None of these efforts have any legal significance (which ought to be a sign that they aren't constitutional, but I digress).

Of course, health-care reform isn't the only law targeted by Tenthers for nullification. According to the Tenth Amendment Center (which is pushing many of the nullification efforts), other laws targeted for nullification include medical marijuana laws, firearm control laws, cap and trade (which hasn't even been enacted yet), EPA regulations, and more. In addition to repealing laws, the Tenthers advocate passing laws or constitutional amendments which restrict the definition of "interstate commerce" (which would restrict Congress' ability to pass laws, because many laws are passed under the Commerce Clause), require state approval of federal tax laws, and require a return to the gold/silver standard.

It ought to be obvious that such efforts, if enacted, would effectively eliminate the federal government. If the federal government, for example, could not pass a budget without state approval, or could not raise taxes from residents of a state until that state consented, the federal government would be crippled. How do we know this? Because it was already tried once before and it failed miserably with the Articles of Confederation.

Under the Articles of Confederation, the Confederation Congress could pass laws, but the power of enforcement lay with the states. Furthermore, Congress itself had no power of taxation -- all revenue had to be requested by the states. Substantively, such provisions in the Articles of Confederation are identical to granting states under the Constitution the power of nullification. Under the Articles of Confederation, the federal government neared insolvency, inflation of the "continental dollar" skyrocketed so much that the saying "not worth a continental" was born, and the military, desperate for funding which rarely came from Congress, was authorized to confiscate whatever property it needed to carry on the Revolutionary War.

Notwithstanding these clear lessons from our past and the bloodiest war fought in U.S. history, many in the conservative base continue arguing that embedded in the Tenth Amendment is the state right to nullify unconstitutional laws. Taking the next step in the logical nullification process, even conservative elected officials have articulated a state right to secession, including Republican Governor Rick Perry of Texas, Senator Jim DeMint (R-SC, arguably the head of the Tea Party), Rep. Steve King (R-IA), Rep. Ron Paul (R-TX), and more.

Arguments for nullification and even secession are, more subtly, a rejection of Article III of the Constitution, which establishes the judiciary and gives it the sole right to interpret the Constitution, and Article VI of the Constitution, which establishes constitutional and federal supremacy. Any state that considers a law to be beyond the powers of Congress can challenge that law in the courts (as many have done with the health-care law, for example). The courts then make a determination as to the constitutionality of that law and, provided it is constitutional, the law is then binding upon all states pursuant to Article VI of the Constitution. Nullification shifts that decision-making process away from the judiciary and into the hands of the state political classes. In effect, the role of the judiciary as a constitutional arbiter is eliminated.

Nullification proponents are quite familiar with the role of the judiciary and its ability to nullify unconstitutional laws. Simply put, such proponents have zero confidence in the judiciary and seek to re-write Article III.

The Tea Party's admiration for the Constitution appears to end where Article III, Article VI, and Amendments 14, 16, and 17 begin. It is an admiration that ignores the historical fact that the Constitution was enacted to establish a stronger central government as a replacement for the weaker state-centered government that was failing miserably. It is a devotion that calls for violent "second amendment remedies" when Congress and/or the courts take an action with which one may disagree. It is a love that calls for a return to policies that supported the racial oppression of millions to the shame of a nation. It is a love of the Constitution that would cause its demise.

US rendition not just for terrorists

By Libby Spencer

I didn't think it was possible to be more stunned by the hubris of this White House than I have been up to now. I was wrong. This development leaves me almost speechless. Our government has now claimed the right to kidnap any citizen, of any country, from anywhere in the world if Washington suspects them of commiting a crime. No point in wasting time with treaties and 'quaint' conventions like legal extradition, when they can cut out the middleman and just snatch their designated bad person off the street.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it. [...]

The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.

Legal experts confirmed this weekend that America viewed extradition as just one way of getting foreign suspects back to face trial. Rendition, or kidnapping, dates back to 19th-century bounty hunting and Washington believes it is still legitimate. [...]

Jones replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.”

Oh good, the turn back civilization to the days of the 'wild West' rationale. I suppose they would like to bring back the genocide of native Americans, lynchings and using duels as accepted manner to settle differences too.

Cernig has reaction from the UK and Heretik adds his inimitable commentary along with the usual brilliant photoshop. Meanwhile, Radley reminds us that this is already happening.

I realize the first thing people think of with extraordinary rendition is terrorism, and getting terror suspects out of countries with unfriendly governments. But don’t forget, this is the same administration that’s snatching up the foreign executives of online gambling companies at airports, then trying and imprisoning them, despite the fact that online gambling is perfectly legal in the countries where they operate, and where they are citizens.

Seems to be the only difference between this policy and terrorist kidnappings in Iraq is that the administration hasn't found a way to justify beheadings as an appropriate 'alternative punishment' -- yet.

(Cross-posted at The Impolitic.)

One word: "waterboarding"

By Carol Gee

. . . was the subject of 29,300 posts carried by my news aggregator Bloglines this morning. The word simply will not go away. In fact, someone I know dreamed about George Bush and waterboarding. It is very serious business when something in the news disturbs the sleep of perfectly normal people.

What is so disturbing about the practice of waterboarding being carried out by people in the name of the U.S. government? It is hard to put into words, but here are a few that come quickly to mind: It is flat wrong. It is un-American. It is stupid. It is illegal. It is uncivilized. It is counterproductive. And it is terribly destructive to the fabric of of our nation's illustrious history of freedom and justice.

I found even better words, however, in my Sunday paper, written by one of my favorite columnists, Joe Galloway, described by his newspaper this way:

ABOUT JOE

General H. Norman Schwarzkopf has called Joseph L. Galloway, a military columnist for McClatchy Newspapers, "The finest combat correspondent of our generation — a soldier's reporter and a soldier's friend."

Galloway is the co-author, with Lt. Gen. Hal Moore, of "We Were Soldiers Once ... and Young," a story of the first large-scale ground battle of the Vietnam War. The book was made into a movie of the same name. Galloway was portrayed in the movie by actor Barry Pepper.

He knows from whence he speaks -- McClatchy's Newspapers Joe Galloway, a Texan, seems very disturbed as evidenced by his most recent column. Dated (11/7/07), the author titled it simply, "Commentary: Is waterboarding torture -- Yes." To quote:

All of Judge Michael Mukasey’s artful dodging and word play to avoid acknowledging the obvious to the august members of Senate Judiciary Committee does nothing to change the fact.

When you hog-tie a human being, tilt him head down, stuff a rag in his mouth and over his nostrils and pour water onto the rag slowly and steadily to the point where his lungs fill with water and he's suffocating and drowning, that is torture.

Four decades ago in the field in Vietnam, I saw a suspected Viet Cong waterboarded by South Vietnamese Army troops. The American Army advisers who were attached to the Vietnamese unit turned their backs and walked away before the torture began. It was then a Vietnamese affair and something they couldn't be associated with.

Galloway goes on to write the most rational, succinct and passionate piece I have ever seen on the subject of waterboarding. I now realize what former Assistant Attorney General Jack Goldsmith (who rescinded the Justice Department's original torture memo) was talking about. In one of my previous posts, "Following the Rule of Law - - Part II," Goldsmith talked about what everyone involved was afraid of, actual prosecution. To quote further from Galloway,

Waterboarding is torture in the eyes of all civilized peoples, no matter how desperately President George W. Bush tries to rewrite the English language, with which he has only a passing familiarity, anyway. No matter how desperately his entire administration tries to redefine the word "torture" to cover the fact that not only have they acquiesced in its use, but they also have ordered its use.

The president, Vice President Dick Cheney, and their cronies and legal mouthpieces such as David Addington, John Yoo and Alberto Gonzales are doing all they can to avoid one day facing the bar of justice, at home or in The Hague, and being called to account for crimes against humanity.

They want a blank check pardon, and they'll continue searching for attorneys general and judges and justices and senators and members of Congress who'll hand them their stay-out-of-jail-free cards.

As they squirm and wriggle and lie and quibble and cut deals with senators, they claim that "harsh interrogation methods" are necessary to prevent another 9/11. But as terrified as they are by terrorists, they also fear that one day they may be treated no better than some fallen South American dictator or Cambodian despot or hapless Texas sheriff; that they might not be able to leave a guarded, gated compound in Dallas or Crawford, a ranch in New Mexico or the shores of Chesapeake Bay for fear of arrest and extradition.

Galloway's conclusion lays it out more clearly than I have seen written to date on the subject of waterboarding. Quote:

Now the Democrats, or some of them, are conspiring with them to seat an attorney general who will help facilitate the ever more frantic search for ex post facto immunity for their crimes. Shame on them! There’s such a thing as too loyal an opposition; too cowardly an opposition; too craven an opposition.

Waterboarding is torture. Decent people have acknowledged that for centuries. We sent Japanese war criminals to the gallows for using it. We sent a Texas sheriff to prison for using it. One day, an ex-president and those who helped him and those he ordered to torture fellow human beings may have to plea bargain for their lives and their freedom.

The one word for voters to ask presidential candidates should be, "How do you feel about waterboarding?" It is not a complicated or convoluted question. It is simple. And the answer should be simple. "Never again."

References:

1. "The Terror Presidency: Law and Judgment inside the Bush Administration," by Jack Goldsmith
2. Lapopessa's "A History of Waterboarding"
3. "We were Soldiers Once . . . and Young," by Joe Galloway and Lt. Gen Hal Moore (USA-Ret.)
   

(Cross-posted at South by Southwest.)

Following the Rule of Law -- Part II

By Carol Gee

Following the rule of law is a principle about which I posted yesterday. That post focused on the admirable support for civil liberties and the rule of law that has been given by Representative Sheila Jackson Lee of my home state of Texas. Today's post, about former Assistant Attorney General Jack Goldsmith, focuses on his own courageous support for the rule of law within the current Bush administration.

Judging from the facts -- I would venture to guess that Representative Jackson Lee and Jack Goldsmith are very far apart on the political spectrum. But they are very close on the integrity spectrum, in my opinion. Most of us first met Mr. Goldsmith when he testified before the Senate Judiciary Committee earlier this month. returning to former Assistant Attorney General Goldsmith's story - told at a Senate hearing three weeks ago. His riveting (10/2/07) testimony can be seen again on C-SPAN: Senate Hearing on "Preserving the Rule of Law While Combating Terrorism" - Jack Goldsmith, Harvard Law School, Professor and former Asst. Attorney General testifies before the Senate Judiciary Cmte. on FISA and counter terrorism efforts. 10/2/2007: WASHINGTON, DC: 1 hr. 55 min.

Goldsmith appeared as a single witness. Now out of the government, he testified about his prior service in the Bush Justice Department. No doubt the members of the Judiciary Committee had very fresh memories of what has gone on inside the Justice Department, according to two brave officials who told the truth to the committee during previous testimony. The first was James Comey, who originally revealed the attempts of Alberto Gonzales and Andrew Card to coerce ailing Attorney General Ashcroft into authorizing illegal wiretapping. During 2003-04 the second, Jack Goldsmith, worked in the Office of Legal Counsel for the current administration, where he worked at the time of this episode . His current book is titled, "The Terror Presidency: Law and Judgment Inside the Bush Administration."

Judiciary Committee Hearing Notes for 10/02/07 "Preserving the rule of law. . .":
As my regular readers know I sometimes take notes during congressional hearings. Following are a few of my notes which paraphrase, as best I can, the gist of participants' significant remarks made at that time.

Senator Feinstein, to Goldsmith regarding the torture law, asked: Why go beyond the UCMJ? Goldsmith explained that there was great pressure to get intelligence information. Regarding the law and counter terrorism, Goldsmith asserted that it is not the Supreme Court's job to do counter terrorism policy.

Senator Sessions: Goldsmith on the hospital room confrontation. Jim Comey, "No legal basis for the program in question." His legal analysis was at the bottom of all this. New attorney General nominee - going up to the line but not entitled to break the law. There are the Geneva Conventions and what Congress passed, the criminal torture statute in 1994. This was the controlling authority to the extreme. It prohibited "severe," etc. The CI A had 100 + lawyers and they were worried about their own culpability. The Hamdan decision mad Common Article 3 applicable to torture. The CIA went up and down over the years with risk aversion, and then not risk averse. They have needed very clear standards. Goldsmith was the one who rescinded the torture memo as "severely flawed."

Senator Feingold: "This is very important testimony." He asked if there were any administration programs not briefed to the "Gang of 8." Goldsmith was not sure how much was briefed. Feingold asserted that the PAA could be very broadly interpreted. Congress should write the law in the way we want it to be interpreted.

Mr. Goldsmith asserted that some of the drivers in the department was hostility towards the FISA court and deep fear of bombs killing U.S. citizens. Goldsmith wrote memos to replace the one he rescinded. And he was prepared to resign. He kept notes about his actions. Regarding the TSP, very few people were provided the legal opinion justifying it. (Goldsmith was willing to testify to the committee in closed session). Asked who was in on it, he named himself, Baker, Comey and Gonzales. He also stated that his book was "pre-cleared" for classification purposes. He also admitted to being self-constrained in what he disclosed in the book.

Senator Cardin: Most concerning is the administrations dealings with Congress. The disdain for the FISA court system is also my concern. "We need an independent FISA court." Goldsmith: "They have been independent. We need to to integrate detainees into the justice system because they are dangerous. We'll have to detain members of the enemy until the war is over.And that could be endless. They don't wear uniforms. They are not members of a criminal system, either. We need something else, legally."

Senator Whitehouse: Returned to the issue of the Gonzales/Card visit to the hospital room of Attorney General Ashcroft. Stated his opinion that, "James Comey and Bob Mueller were among the most level-headed people in government, not given to exaggeration. But you and Comey rushed with red lights on across town to the hospital room, Comey bounded up the stairwell, and Mueller called his FBI agents with instructions not to leave Gonzales and Card alone with Ashcroft in that room. You saw it as an emergency, the White House trying to take advantage of a very sick man." Goldsmith characterized the episode as, " It was extremely inappropriate." Senator Whitehouse stated his belief that the Office of Legal Counsel should really follow a set of internal norms and practices, and that the new Attorney General should examine the state of those norms and practices left by Gonzales. "Do a thorough scrub to protect the Justice Department. Those norms were bypassed, degraded and ignored by Alberto Gonzales, John Yu, David Addington and the like. There were no limits on the President's prerogatives. That policy has been hurtful."

Mr. Goldsmith related the "messages" he got about the terrorist threat situation, with some attribution to David Addington in the Vice President's office. Nothing should "tie the President's hands. That would be hurtful to the country. You don't want the blood of 100,000 people on your hands." He was stirring up fear, of course, but Goldsmith did not think the level of threat was exaggerated, however. There are "tens of billions of phone calls and e-mails that equal a daily matrix of threats." He said that Bin Laden "declared war" in 1996, but the administration was timid back then. But even today officials still fight over "do everything you can versus operate within the law." This produces extraordinary anxiety for decision makers. There is a great need to legislate very clearly, with oversight but not prosecution. There needs to be accountability. Right now agents all carry lots of liability insurance. We need new laws, perhaps a good faith statute? The threat was real. But the more viewpoints we get with these extremely difficult decisions, the better. Congress, indeed has the right to know how the President will interpret any new legislation.
Regarding the idea of retroactive immunity for telecom companies, he thought that was "sensible." And regarding the practice of torture, he "does not know if it has been abandoned. . . Signing statements can be operationalized. The real fear is getting hauled into court."

Senator Whitehouse continued with a discussion of how torture came under such assault; what about "very severe pain? Does that condone burning with cigarettes, which would risk death?" Goldsmith revealed that Where the "Bybee Torture Memo" standards emerged was from health care statutes applied to the requirement to provide health care benefits in emergency circumstances. Whitehouse concluded with a brilliant and important statement about his love for the rule of law. It must not be treated this way. "It has shape and substance and form" deserving better than this.

Senator Leahy told Goldsmith, "We can't trust the administration, if we want to protect those CIA agents under such tremendous pressure.". . . "You kept your conscience."

Following are the related stories during that week.

• Summary of a Phone call to the C-SPAN Thursday morning program from Scott Shane, the NYT reporter who broke the (new torture memos) story: "Representative John Conyers and Senator Patrick Leahy have asked the White House for copies of the legal opinions. Oct. 17 will be the confirmation hearings for the new AG." (Shane) talked to two dozen officials in and out of government. He noted that Acting OLC Bradbury has been refused confirmation by the Democratic Senators.


• Senator Kennedy spoke on the floor of the Senate Thursday, October 4: Regarding the NYT story -- "The office of Legal Counsel withdrew its legal opinion on torture. But later in 2005 the administration put 2 new opinions in place. 1) The harsh interrogation techniques were allowed to be used in combination. 2) It declared that the CIA was not violating the law with anything they were doing -- amounting to a declaration that the CIA had not violated any laws along the way. In that way the White House had overruled the OLC. Comey and Goldsmith had been sidelined. Attorney General Gonzales had approved these two opinions and everything else the President wanted. (Kennedy will be introducing a bill that states that the standard of treatment of detainees by anyone in the government will be the Army Field Manual). This is because 2005 Detainee Treatment Act had a loophole in it, allowing the President to define those standards, not Congress. The Executive Order took maximum advantage of the opportunity. This nation cannot stand for the use of brutal interrogation techniques."


• Statement from our current president (OCP) later that morning -- with a rather defiant tone, "I have put this program in place for a reason. This government does not torture people; we detain and question people looking for actionable intelligence. The techniques were fully disclosed to Congress. The Government sticks to U.S. law and obligations. Highly trained professionals doing this work to protect you. The American people expect their government to take action to protect them. And that is exactly what we are doing."

In conclusion - in addition to Sheila Jackson Lee and Jack Goldsmith, several Senate Judiciary Committee members have also acted admirably throughout this controversy. I include for kudos: Senator Patrick Leahy is the tough chairman. Senator Arlen Specter is the Republican who also loves the law. Senator Diane Feinstein (not an attorney), but as good as many lawyers, her fellow members have declared. Senator Kennedy, who is not afraid to speak out about almost anything. And most of all Senator Sheldon Whitehouse, whose passion for the purity of the rule of law in unmatched, in my opinion. Heroes all, too often in the company of cowards.

(Cross-posted at South by Southwest.)

A Patriot Act that isn't patriotic at all

By Michael J.W. Stickings

Slowly, ever so slowly, the USA Patriot Act is being exposed -- in the courts, if already among commentators -- for what it is, an un-American desecration of the Constitution:

A federal judge in Oregon ruled yesterday that two provisions of the USA Patriot Act are unconstitutional, marking the second time in as many weeks that the anti-terrorism law has come under attack in the courts.

In a case brought by a Portland man who was wrongly detained as a terrorism suspect in 2004, U.S. District Judge Ann Aiken ruled that the Patriot Act violates the Constitution because it "permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

"For over 200 years, this Nation has adhered to the rule of law -- with unparalleled success," Aiken wrote in a strongly worded 44-page opinion. "A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised."

For over 200 years -- that is, until Bush, Cheney, and the executive power cultists took over. With 9/11, the hyped-up threat of terrorism, and the so-called war on terror providing cover, and with an opposition cowering in submission (even now, still), these authoritarian radicals have effectively tossed aside the rule of law and replaced it with the trappings of a police state.

The Constitution, I believe, is strong enough to withstand the Bush presidency, but it nonetheless needs its defenders, those willing to push back against the authoritarian radicals. With the Democrats mired in the quagmire of wishy-washy apologetics, we can be thankful that there are judges like Ann Aiken to rise to the historic occasion of standing with and for the American people and their civil liberties.