Posts Tagged ‘Supreme Court’

Far Right Roberts Court Further Erodes Citizen Rights.

Following up the horrible ruling that established corporations as persons and their money as free speech further cementing the power of the corporate state in the Citizens United v FEC case, the Roberts court further weakened the rights of living breathing citizens in their relationship to state power in a 5 to 4 paradoxial court ruling. In the ruling, the citizen must talk to the police declaring his or her right to remain silent instead of being informed of their right to remain silent by the police. The Baltimore Sun editorializing in a piece titled, “Eroding Miranda“, explained

The Supreme Court this week took another step back from its 1969 Miranda ruling, which requires police to notify criminal suspects of their right to remain silent when questioned. In a bizarre opinion by the court’s conservative majority, the justices ruled 5-4 that unless a suspect explicitly invokes his right not to talk — that is, unless he talks to the police — he’s not entitled to remain silent, and any statement he makes can be used against him in court.

This paradoxical interpretation of the law, as Justice Sonia Sotomayor pointed out in her first major dissent since joining the court, “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.” In effect, it says to a suspect: You have the right to remain silent, but if you want to use it you’d better start talking.

The case involved a Michigan man, Van Chester Thompkins, whom police suspected of shooting another man to death outside a mall in 2000. When Mr. Thompkins was arrested a year later, police read him his Miranda rights, but he refused to sign a form acknowledging he understood them. He then remained silent through three hours of questioning until he was asked by an officer whether he thought God would forgive him “for shooting that boy down.”

This should please the Obama DOJ since it will take the pressure off of creating or using law to circumvent the rule of law as it tries to hold on to unconstitutional power of executive branch practices given it by the Bush Administration and a complicit Congress. In a piece titled, “Eric Holder: Miranda Rights Should Be Modified For Terrorism Suspects” by Nico Pitney at the Huffington Post,

Attorney General Eric Holder said for the first time today on ABC’s “This Week” that the Obama administration is open to modifying Miranda protections to deal with the “threats that we now face.”

“The [Miranda] system we have in place has proven to be effective,” Holder told host Jake Tapper. “I think we also want to look and determine whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront. … We’re now dealing with international terrorism. … I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that’s one of the things that I think we’re going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face.”

He is off the hook now. The Roberts Court gave him his wish.


Another Court Jester For The King. Elena Kagan And The Imperial Continuum.

While Republicans may talk about their misgivings about Obama’s Supreme Court nominee Elena Kagan and her “progressive” views and the vapid religious right insinuates she may be a lesbian (to stir up their bigots), the real questions and issues surrounding Kagan’s views come from “real” progressives or liberals. In fact, it might be that she fits just fine in the imperial Bush/Cheney view and legacy that the executive branch is above or beyond the law, Constitutional restaints, as well as any international laws or treaties ratified by the U.S.. Many liberals, Constitutional scholars, and civil libertarians are viewing her more with skepticism and disappointment since she is replacing Justice Stevens who stood up firmly for the Bill of Rights, Constitutional separation of powers, habeas corpus, and due process under the rule of law. This is especially true since she agreed with Bush/Cheney concepts (unAmerican by nature and legal tradition) concerning indefinite detention during her confirmation hearings as Solictor General. Add in her inexperience and lack of legal writings during the time many of our constitutional and legal precepts were shredded during the previous administration has many worried.

Many misgivings by those concerned with the constitution, legal precedents, and the rule of law show that the possibility for a prolonged era of imperial presidencies may indeed lie ahead. There is this from Tony Mauro writing in the National Law Journal titled “Supreme Court Watchers Wonder: How Conservative Is Kagan?“,

Until then, the drumbeat of Kagan criticism may get louder as scrutiny of her brief record as solicitor general intensifies. Advocates for human rights and other liberal causes who are upset at the Obama administration for continuing Bush-era policies may take their frustration out on Kagan.

“From the perspective of those who have been advocating change from Bush policies, she has been a disappointment,” said Tina Foster of the International Justice Network, who argued against Kagan’s deputy Neal Katyal over detention policies in an appeal in January.

“She would spell very bad news” if she became a Supreme Court justice, said Vince Warren, executive director of the Center for Constitutional Rights, which has long challenged Bush and now Obama detention policies. “We don’t see any basis to assume she does not embrace the Bush view of executive power.”

At the Electronic Frontier Foundation, senior staff attorney Kevin Bankston called the Obama administration’s stance on state secrets and national security wiretapping “a grave disappointment, particularly for those who took Obama’s promises seriously.” Bankston cautioned he is not certain how involved Kagan herself has been in the positions the department has taken on these issues.

And even Kagan’s own deputy Neal Kumar Katyal writing in the Yale Law Review titled “Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within” says

Elena Kagan’s recent defense of presidential administration concentrated on domestic policy, but her ideas suggest a criticism of the above proposals. She claims that presidential administration energizes a moribund bureaucracy:

“The need for an injection of energy and leadership becomes apparent, lest an inert bureaucracy encased in an inert political system grind inflexibly, in the face of new opportunities and challenges, toward (at best) irrelevance or (at worst) real harm. . . . This conclusion, of course, would be less sound to the extent that the political and administrative systems fail to impose adequate limits on the President’s exercise of administrative power. Then, the balance between friction and energy would tip toward the opposite extreme— away from the too broad curtailment of regulatory initiative to the too facile assertion of unilateral power. One reason not to fear this outcome relates to the President’s accountability to the public . . . .105”

But this view of the presidency, at least in the realm of foreign affairs, is as far from a description of contemporary reality as are Madison’s views, reprinted in the first paragraph of this Essay. Consider such claims in light of the facts that: (1) there is little public accountability when decisions are secret; (2) agency officials have been excluded from providing input on answers to key legal questions; (3) no neutral subordinate decision-maker exists; and (4) the administration has itself asserted that the brunt of these questions are beyond the purview of the courts altogether.

Michael Tomasky writing for the UK’s The Guardian titled “Elena Kagan” writes

One example: when she was being confirmed by the Senate for her current post, solicitor general, she defended the right of indefinite detention of terrorism suspects.

I think these things should be taken seriously. It follows a certain logic that she probably wouldn’t feel as free as John Paul Stevens did to offer striking dissents on such matters. Stevens was in his eighties and beyond caring what anybody thought of him. Kagan will want to be a force on the court, meaning (I’m just guessing here, but it makes sense if you read that Times profile) that she might want to be more of a conciliator, more of a power-player among the court’s nonet rather its thundering dissenting voice on these questions.

And finally there is this from the Heritage Foundation, a leading edge organization in the anti-democracy movement in the United States, from February 18th, 2009 in a piece on their blog titled “On Detainee Treatment, Sanity Still Prevailing at the White House

Last week we congratulated the Obama Administration for choosing the security of the American people over the bumper sticker slogans of the far left. Today, the New York Times details the Obama Administration’s continued prudence on some key national security issues:

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

In the shift from the 20th century to the 21st century, we have seen the United States go from world leader and its push as a nation of the rule of law at the Nuremberg Trials (thereby creating the Nuremburg Principles, the framework of current international law) to today’s international beligerent and the international barbaric disgrace of Guantanamo Bay, the prison at Bagram, and Abu Ghraib Prison. We have seen the state secrets privilege abused in denying victims of illegal torture their day in court, and to cover up high crimes of state as revealed in the case of Sibel Edmonds. Many of us sons and daughters of World War II veterans realize what separated us from the barbarian was the rule of law (not to create laws to subvert the rule of law). It is within this context many of us oppose Elena Kagan for the Supreme Court. How much further can we slip from freedom’s gaze?

More On The Supreme Court Ruling In Citizens United v. Federal Election Commission And The Road Ahead. Supreme Choice: Terminate Transparency, Accountability & Right To Know, or Enforce the Criminal Law?

Supreme Choice: Terminate Transparency, Accountability & Right to Know, or Enforce the Criminal Law?

Today’s editorial in the LA Times hits an issue on the head. It is the critical issue for self-government (or its potential restoration) in our time. As framed in the case now in the US Supreme Court, gay rights advocates are the bad guys – harassers and retaliators – and the solution proposed is to eliminate the public’s right to know who the anti-gay rights forces are, or to check and balance their power. The Court’s ruling will apply, as it must, to petitioners generally. Hitting the issue on the head, the LA Times said:

“{T}he remedy for that problem is enforcement of criminal laws, not the withholding of public documents. If a state acts on its commitment to transparency, it shouldn’t be thwarted by a fallacious 1st Amendment argument.”

What is the issue the LA Times hit on the head? It’s the claim made in the US Supreme Court in Doe v. Reed, by the very same lead attorney as in Citizens United, this time saying that the names of referendum petition signers should be SECRET – on the grounds of preventing potential retaliation or harassment of the signers.

Attorney James Bopp, Jr seeks to protect those that allegedly signed a referendum petition against gay rights. I say “allegedly” because the Supreme Court has already ordered the names and identities of signers held secret and so if anyone knows for sure what is on those petitions it would only be the Washington state’s Republican Secretary of State Sam Reed.

I should not have to point out that secret petitioner signers eliminate any and all checks and balances whenever the interests of the petitioners (Republicans, in this case) align with the interests of the official checking final numbers of signatures (another Republican operation). Moreover, even when interests do not align, secrecy causes massive structural damage to checks and balances, accountability and the public’s right to know.

The Washington state law that would otherwise say these STATE law signatures are public records was passed overwhelmingly by initiative. I’ve put key text from this public records law, mirrored in other states like California and West Virginia, in large type to make sure everyone can “hear” it, and not mistake it for an exercise of the right to remain silent. Among other very strong language, it says:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
-RCW 42.56.030

How can the people “remain in control” when advocacy groups get laws on the ballot with secret, perhaps bogus, signatures? You can expect corporate-backed laws to be accompanied by $10 million or more unlimited spending sprees per Citizens United and other cases.

Persons who sign petitions to get things on the ballot are invoking the direct-democracy Legislative capacity of the people to pass laws. It is very much like the requirement, then, that legislators have public hearings and publish their roll call votes for voters to inspect and hold accountable.

To allow such petitions for initiatives and referenda to keep identities of signers secret means that the levers of power are allowed to operate with masks on and hoods over their head. This is not the accountability planned for self-government.

Secrecy always totally defeats any possible accountability.

The protection for those actually harassed is the same protection you and I have against murder, rape, or burglary: call 9-11 and invoke the criminal laws. If that is good enough for murder, it is good enough for anyone signing a petition, to be sure. Besides, the entire notion of checks and balances and the public’s right to know is implicated with petitions, but not with ordinary crime.

The LA Times, located in California, is in one of the few states that keeps petitioners secret in most cases. California has recently been forcing voters with political buttons on to wear hospital gowns in polling place to cover up if they do not remove the button or shirt. The LA Times sees past its own state’s regulations on petitions.

This Doe v. Reed case US Supreme Court case is the intermediate step in making all campaign contributions secret (probably by putting code numbers instead of names on “disclosures”). With voters being hushed up in polling places in California and other places, an opinion in the California Court of Appeals just two weeks ago holding that poll watchers have no right to have a camera or video to document anything, and with the cases moving up to the Supreme Court arguing for principles of secret political contributions, we need to make clear the stakes here are absolutely fundamental and non-negotiable:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.” – Revised Code Washington, RCW 42.56.030

Nevertheless, by an 8-1 vote the Supreme Court has ordered the signatures held secret pending their decision, which is not yet even docketed for oral argument. Certainly, the ballot will be finalized and perhaps the election over before the Supreme Court decides. This means that the Supreme Court is erring on the side of secrecy. Besides, under Supreme Court rules a stay may not be issued at all unless it is likely the requesting party is going to win when all is said and done. Consequently, the sole vote of Clarence Thomas for no disclosure in Citizens United is not a good predictor of where the principles of Citizens United and the attorney common to both Citizens United and Doe v. Reed are taking us. It is a railroad to secret campaign money and secret petitions.

Secrecy means no accountability. Who can possibly be in favor of unaccountable government or unaccountable exercises of power over us?

Instead of having our right to remain silent read TO us, we should read OUR rights TO THEM. See the statement of democracy and self-government that is the same philosophy nationwide as it is in Washington State, that the Supreme Court is poised to strike down as applied to exercising the power to get things on the ballot. RCW 42.56.030.

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

If the Supreme Court kills the above policy of the people of the State of Washington, what has to stop lawmakers claiming fear of harassment from keeping their votes secret? What’s to stop the destruction of the right to know and all accountability? Accountability always feels like harassment or retaliation, especially when power abuses or ignores important rights. That’s exactly where they want the secrecy.

Paul Lehto, Juris Doctor


Lead Point Attorney Of Citizens United Confessess To 10 Year Plan To Take Down All Campaign Finance Law.

In a story in the New York Times, ” A Quest To End Spending Rules for Campaigns” by David Kirkpatrick, lead attorney for Citizens United, the rightwing group in Citizens United v. Federal Election Commission, James Bopp Jr. was cited in an interview saying,

“We had a 10-year plan to take all this down, and if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.”

He went on to say we’re not done yet. Also the article notes,

The same week the court issued its ruling, it agreed to hear Mr. Bopp’s next appeal: seeking to prevent the public release of the names of people who signed a Washington State petition opposing same-sex marriage, on the ground that gay rights supporters might harass them.

For Mr. Bopp, it is a chance to chip away at some of the disclosure laws left intact by the Supreme Court’s ruling in the Citizens United case.

Then there is his suit on behalf of the Republican National Committee, pending in the United States Court of Appeals for the District of Columbia Circuit, seeking to overturn some of the limits on direct corporate contributions to the political parties. When Mr. Bopp filed it a few years ago, many legal scholars considered the suit almost pointless because of Supreme Court precedents. But the court’s opinion last week — from a slightly different set of justices — has cast it in a far more favorable light.

In other words, no spending limits, no disclosure (secrecy), and no accountability. It seems he has the right court packed full of radicals for full multinational corporate control of the election process in the United States. The public interest is under dire attack.

As Progressives Knew, The Hard Right Supreme Court And the Judiciary Packed By Republican Presidents Wasn’t All About “Saving Babies” Or Stopping “Liberal Activist Judges”.

As progressives as well as civil libertarians knew, the hard right judges on the Supreme Court and America’s District Courts wasn’t so much about “saving babies” (Roe V. Wade) or “liberal activist” judges, but was about putting power in corporate interests and increasing power of the executive branch of the United States. But while you could argue with the myopic Roman Catholic Church (of which I belong) or the Christian Right all you want to about the Constitution, the fear of many Constitutional scholars and civil libertarians was further made reality with today’s Supreme Court decision. The judges the American right has been tapping into are from a group called The Federalist Society and not really associated much with the American Bar Association philosophically. They have believed in a “Constitution in exile” and believe that much of American legal development of the past 200 years has gotten it wrong. This group also pushes hard the “unitary executive” theories that played some part in the illegalities and stands of the Bush imperial presidency. In today’s ruling in Citizens United v. the FEC, the “corporate person” was granted the decision that its riches are “free speech” and is further solidified and protected from interference of flesh and bones persons when it comes to the American political process. The ruling can be read here.

The reaction to the decision by public interest groups was swift.

A coalition of public interest organizations strongly condemned today’s ruling by the US Supreme Court allowing unlimited corporate money in US elections and announced that it is launching a campaign to amend the United States Constitution to overturn the ruling. The groups, Voter Action, Public Citizen, the Center for Corporate Policy, and the American Independent Business Alliance, say the Court’s ruling in Citizens United v. FEC poses a serious and direct threat to democracy.

“Free speech rights are for people, not corporations,” says John Bonifaz, Voter Action’s legal director. “In wrongly assigning First Amendment protections to corporations, the Supreme Court has now unleashed a torrent of corporate money in our political process unmatched by any campaign expenditure totals in US history. This campaign to amend the Constitution will seek to restore the First Amendment to its original purpose.”

As the Tea Bag movement continues their fight against the “big government takeover” of the private sector as they march hand in hand with Alice in Wonderland, we in the reality based community who constitute the reality based fight against the corporate takeover of government must continue to do so with determination and resolve.