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John Roberts and the Death Penalty

By Elaine Cassel Wed., Aug. 17 2005 at 8:24 PM
Categories: Imported

We have rightly heard a great deal of commentary on an important question: What would the confirmation of Judge John Roberts - who would take retiring Justice Sandra Day O'Connor's Supreme Court seat - mean for the right of privacy, and for Roe v. Wade?

In this column, I want to ask another important question: What would John Roberts's confirmation mean for the Supreme Court's death penalty jurisprudence?

My analysis suggests that it may mean a great deal.

Justice O'Connor's Recent Death Penalty Vote

In 2002, Justice O'Connor joined the majority in an important death penalty opinion, Atkins v. Virginia - which I discussed in detail in an earlier column. There, the Court held -- in a 6-3 vote -- that executing a defendant whom the jury finds to be mentally retarded is unconstitutional.

In this case, and in other recent cases that put limits on the death penalty, the Court majority cited evolving public "standards of decency" for its ruling, and based its assessment of those standards in part upon a survey of state and international death penalty law.

If Roberts takes O'Connor's seat, a single vote could make it even harder to make further progress in this area.

As I will explain below, there is reason to think a Justice Roberts will be quite conservative on the death penalty. Yet, further progress is required if the mandate of Atkins, to take just one example, is not to be an empty promise.

How Would a Justice Roberts Vote on the Death Penalty?

The public knows little about what Judge Roberts thinks about the death penalty.

On one hand, he is a staunch Catholic and the Catholic Church has often taken a stand against the death penalty.

On the other hand, in a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases."

Roberts was correct that by the time a state death penalty case gets to the Court it may have been evaluated three or four times. The trial court has made legal rulings in the case. So, probably, has a state appellate court. Then, in a last ditch effort, a defense team may have filed a habeas corpus petition in federal court.

But unlike all these courts, only the Supreme Court can decide to overrule prior Supreme Court precedent - as it did in Roper and Atkins. (Atkins reversed Penry v. Lynaugh (1989), in which the Court found that execution of the mentally retarded was not per se unconstitutional.)

So Roberts is not right that the Supreme Court is merely fourth- or fifth-guessing determinations made by the prior courts. It is making one entirely original determination, on which no other court has yet ruled: Should prior Supreme Court death penalty precedent be modified under the particular set of facts before it?

Today, the Supreme Court's docket is only about half of what it was when Roberts was writing the memo. So if he was truly worried about overcrowding the courts' docket with death penalty cases, that worry ought to have disappeared (though it seems we shouldn't look to Roberts to expand the Court's death penalty docket).

But if Roberts's real point was the Court should not take very many death penalty cases, because they are typically reviewed multiple times anyway, he may close even further the already- narrow gate that lets only a few death penalty cases reach the Court each year.

Yet, behind each of these appeals is a human being for whom the Court's decision means the difference between life and death. Should this individual's plea for review be framed simply as a matter of docket control?

Judge Roberts's Ruling in a Criminal Case Suggests Little Concern for Fairness

As a D.C. Circuit judge, Roberts had few occasions to decide criminal cases. But one was a remarkable for its outrageous results.

Washington D.C. police made local headlines when they arrested a twelve-year-old African-American girl, Ansche Hedgepeth, in a D.C. subway station. Her crime? She'd put a single French fry into her mouth - violating a ban on eating on the Metro. For this, she was handcuffed, taken to the station in the back of a squad car, and ultimately convicted.

In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts saw no constitutional violation - even though, anomalously, adults who committed the same offense, under the law, merely received a citation. Nor did he see any constitutional violation in the gross disproportion between what Ansche had done, and how she was treated by the police.

This decision, and Roberts's view that death penalty cases waste the Court's time, bode ill for any hope that Roberts might be more like Justice Kennedy than Justice Rehnquist (who dissented in both Roper and Atkins), when it comes to death penalty cases.

After all, Roberts clerked for Rehnquist. Perhaps he shares Rehnquist's view - expressed in his dissent in Atkins -- that the only inroads in the death penalty ought to be those made by state laws and state juries. In other words, according to this view, the Court should in effect abandon scrutiny of the death penalty on Fourteenth Amendment grounds and leave every state to its own standards of due process and cruel and unusual punishment.

In light of Roberts's likely role on the Court if confirmed, perhaps the conjunction of two impromptu remarks made last week by 85-year-old Supreme Court Justice John Paul Stevens was no coincidence. Speaking to the American Bar Association, Justice Stevens expressed dismay over the "serious flaws" in the country's use of the death penalty. He also mentioned that the retirement of Justice Sandra Day O'Connor was a "very, very wrenching experience" for him.

The First Reason Why Staying the Course Is Not Good Enough: Technology Cuts Against the Death Penalty

Readers may ask: Given that Atkins and Roper were significant advances in the Court's death penalty jurisprudence, will it matter very much if a more closely divided Court now does little in this area for a while?

The answer is: Absolutely. Though some progress was made on the unfair application of the death penalty in the last 30 years, more is needed.

Why? Justice Stevens pointed out two of the reasons in his speech to the ABA. And there are many more to add to these; I'll explore just one more, in this column.

First, as the Justice noted, we've increasingly seen death row inmates exonerated as innocent by DNA analysis. Now, granted, in some cases, DNA analysis may be able to prevent such mistakes from ever occurring again - mooting this issue for the future. But in many other cases, the possibility of future DNA analysis may be a compelling reason to keep the defendant alive -- for he may be exonerated in the future when DNA that currently matches neither his DNA, nor anyone else's in the system, is matched to a new arrestee. And of course, this can always happen with fingerprints; because not everyone's prints are in the system, unmatched fingerprints can always be matched to a new arrestee.

Our terrific technology, for these reasons, is a reason to wait until we know the truth - not a reason to kill now and ask questions later. America's technological excellence can and should mean a better quality of justice for its citizens.

The Second Reason Why Staying the Course Is Not Good Enough: "Death-Qualified" Guilt Phase Juries

Second, as Justice Stevens remarked, the Supreme Court allows prosecutors to control the jury in capital cases and seat only "death-qualified" fact-finders. That means that at both the "guilt" and "penalty" phases, judgments are made exclusively by jurors willing to impose the death penalty.

The Supreme Court has ruled, conversely, that the defendant is not allowed, over a prosecutor's obvious objections, to seat jurors who have qualms about capital punishment.

Behavioral science research into jury behavior has consistently found that jurors who are "death-qualified" and likely to impose the death penalty are also more likely to convict the defendant.

That's a violation of the Sixth Amendment's fair trial guarantee, and the Court should say so. At least the "guilt" stage jury - at the very minimum -- should be empanelled without regard to their respective views on capital punishment. To continue the current practice is a gross infringement of fundamental fairness.

The Third Reason Why Staying the Course Is Not Good Enough: The Supreme Court Needs to Further Refine Its Mandates

There is also a third area where progress is needed, though Justice Stevens did not explore it in his speech: The Court sometimes needs to revisit cases in order to give further direction as to how states carry out its rulings. To see why, it's helpful to look more closely at the case of Daryl Atkins - and what happened when it was sent back to Virginia.

Surely that ruling meant that Atkins received more justice in his second "sentencing phase" trial, back in Virginia state court?

Not exactly. On August 5, a Virginia jury delivered its finding in the resentencing of Atkins. It found, once again, that he was not mentally retarded, and thus could and should be executed.

Two possible reasons exist for this finding: the first, discussed above, that jurors are primed for the death penalty. The second has to do with the proof required to prove mental retardation.

Atkins left it to each state to define mental retardation. States have uniformly adopted the American Psychological Association's diagnostic criteria for mental retardation, drawn from The Diagnostic and Statistical Manual of Mental Disorders (DSM). And the current DSM requires that in order to be diagnosed as mentally retarded, a person must currently (1) score below 70 (with 100 being average) on one of the major standard intelligence assessments and (2) have functional impairments that are apparent in daily life, work, and/or educational settings to a degree consistent with the level of retardation diagnosed (there are four levels, ranging from mild to severe). Further, these factors must have been apparent before the individual reached the age of 18 years. The defendant has the burden of proving his mental retardation by a preponderance of evidence.

The difficulty in proving that last requirement is very often what sends mentally-retarded defendants like Atkins to their death. It forces them to prove their impairment is a developmental disorder, and not one that was caused by adult-onset factors like head injuries, accidents, or other processes that cause cognitive decline. Practically speaking, such evidence is hard to come by.

Few defendants will have been tested for IQ while a juvenile. Today, IQ tests are not done on public school students unless the students are being assessed for special education classes - a process that often results from teacher observation of the student over a significant portion of the school year, and from parental involvement. Many, if not most, capital defendants drop out of school or attend school erratically. Fewer grew up in families with the resources to track their educational and social needs.

Moreover, even if defendants were IQ-tested, or tracked into special-education courses as juveniles, records from year ago--20 years in the case of Daryl Atkins-- may not be available. Impressively, Atkins's team found several witnesses, including a schoolteacher who testified that she did not think that Atkins functioned on a "normal" IQ level. But there was no IQ test from his school years.

Finally, even the first requirement, a current IQ below 70, may be hard for genuinely mentally retarded defendants to meet. The Atkins case shows why.

At his first sentencing, Atkins had introduced expert evidence that his IQ score was significantly below 70-- it was 59, bordering between mild and moderate retardation. At that sentencing, the prosecution's expert, who did not administer an IQ test, said that he could tell from talking to him that Atkins was not retarded. The Supreme Court agreed with the Virginia Supreme Court in finding the prosecution expert's opinion "incredulous."

In preparation for his resentencing, Atkins scored between 70 and 74 on IQ tests administered by defense and prosecution experts, a score that put him clearly out of the diagnostic range for mental retardation. Ironically, Atkins's attorney and psychologist noted that his higher scores may be attributable to repeated testing, something they argued in sentencing.

The Unfulfilled Promise of Atkins and Similar Cases

A jury wanting to spare Atkins life--one not primed for death-- could have and maybe would have. But not this York County jury. Although his co-defendant had long ago been given life in prison, Atkins once again was sentenced to die.

Perhaps the Supreme Court needs to revisit Atkins's case, or another capital case involving a mentally retarded defendant, and scrutinize the methods by which states make findings of mental retardation. Maybe the criteria being used are unfair to defendants like Atkins who may be retarded but cannot prove it under existing standards. (The Court has often heard cases involving the same defendant, with different issues, in order to refine its death penalty jurisprudence.)

The Court might mandate that states do what some (those that are not as death-happy as Virginia) have already done, and require that a judge make a finding of mental retardation, not a death-qualified jury. Once a judicial finding is made, the death penalty would not be an option for the prosecution.

In the meantime, the trial judge ordered that Atkins be executed on December 2. His attorneys may try to bring his case before the Court once again, perhaps to challenge some of the issues I have raised.

If so, would a Justice Roberts vote against reviewing Atkins's case yet again? Most likely. It is safe to assume that Daryl Atkins, and defendants in similar positions, will find one less justice willing to grapple with what Justice Stevens called the "serious flaws" in the death penalty.

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Why the Right Gets It Wrong

By Elaine Cassel Sun., Aug. 7 2005 at 9:36 AM
Categories: Imported

Just running down the alphabet, I can describe the right-wing conservatives and corporations running our country: authoritarian, bullying, closed-minded, demanding, entitled, farcical, gutless, hypocritical, inconsistent, jarring, kowtowing, lame, mean-spirited, nasty, oppressive, power-hungry, quixotic, radical, sanctimonious, tyrannical, unconvincing, vicious, weak, xenophobic, yellow-bellied and over-zealous.



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To hear these carriers of the torch of truth tell it, truth is a matter of black and white. They would have you think it is a "for-us-or-against-us world," as George W. Bush asserts. But life is not that way. We don't have to go beyond the president's so-called "war on terror" to find an example: consider our two-faced dealings with Saudi Arabia. Condi Rice and Donald Rumsfeld say the Saudis are "with us," but do not admit they are "with us" because we line their pockets with energy dollars.

The right wing gets it wrong because they rely on expediency - getting what they want, when they want it. There is no honest searching for truth because, to them, truth is variable. For instance, Sen. Bill Frist, R-Tenn., has stood by President Bush for five years on stem-cell research, insisting it is an immoral trade-off of killing a baby in order to save an old fogey from Parkinson's. Last week, Frist redefined stem cells and embryos. I am sure his change of heart was driven by some nefarious scheme to put more money in the coffers of the pharmaceutical or medical industry.
This sort of expediency explains why the right wing is so inconsistent. For ambassador to the United Nations, they are willing to install a bigot who despises the body. For Supreme Court justice, they support a man who has argued vociferously for stripping the Supreme Court of jurisdiction to hear cases arising under the 14th Amendment. And before he was a Supreme Court justice, Clarence Thomas was installed by conservatives as head of the Equal Opportunity Commission - this despite the fact that, judging from his decisions, Justice Thomas abhors equal opportunity.

This illogic and hypocrisy extends even to the naming of many recent laws. A 1,400 page document that strips law-abiding Americans of basic rights guaranteed under the Bill of Rights is called the "USA Patriot Act," so that those who challenge their loss of liberty will be unpatriotic by definition. Legislation that gives power companies authority to pollute the air is called "Clear Skies." And what is in the "energy" bill? Billions in subsidies to the oil and gas industries at a time of record profits - and almost nothing to reduce our dependence on foreign oil.

The right gets it wrong because they are authoritarian. There is no compromising or balancing of ends with means; it's "my way or the highway." In every disagreement, they bully their way to victory. And like the good children of authoritarian parents, the right's followers respond with unwavering loyalty to the demands of their leaders, even when those leaders act against interests of their country.
To be fair, the left enables this waste of time and money by failing to choose their battles. Like all good victims, we let the bullies push our buttons. Before we know it, we have been bloodied and bruised fighting a fight that we should have skipped in the first place. Consider the quest for records from Vice President Dick Cheney's so-called "energy panel." A third-year law student could have read the regulation cited by public interest organizations and found that Cheney's chewing the fat with the oil companies was not a "record" they could secure by lawsuit.

For the right, life is all about power - the end game of authoritarianism. There is no god but their God, no truth but their truth. The Federalist Society, an organization of right-wing zealot attorneys, is embedded deep in the Justice Department and the federal court system. They contend that they alone can channel the intent of the founding fathers in the Constitution.

The right is wrong on just about every issue of the day. Sensible Americans, few though we may be, had better figure out a way to disarm the ideological bullies and return reason and pragmatism to government and American life

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Fenced Out of the Fourth of July

By Elaine Cassel Mon., Jul. 4 2005 at 5:54 AM
Categories: Imported

By ELAINE CASSEL

On July 4, 2003, I took my customary bike trip into DC from my home in Virginia. Along the Potomac River, across the bridge, onto the "National Mall," as it is called. The strip of land that runs from the Lincoln Memorial to the Washington Monument. South of the mall is a beautiful area known as The Tidal Basin, a lake of water surrounded by walkways and cherry trees given to the American people by the Japanese government. Oh, and at one end of the Tidal Basin, the Jefferson Memorial and the smaller memorial to George Mason, father of the Bill of Rights.

July 4, 2002, the first since 9/11, the nation was on "orange alert." I knew security would be "tight," because the news was full of it. But I did not realize what that meant until I arrived at the mall only to be turned away. The mall was "closed" for a bomb search. Now, I don't know how they were searching for bombs or what kind of bombs, but I guess the cops were in the trees and in the tunnels. Who knows? I hear it opened hours later.

There was nothing for me to do then but reverse directions, come back over the 14th Street Bridge, and return to the relative calm of Alexandria, Virginia (that was before "terrorist" trials took over the town, and barricades erected here to keep God only who or what knows out). Before I crossed the bridge, I called my daughter. Her childhood was filled with July 4's on the mall-from the time she was a infant, up to the prior year when we all (grandkids, husband, friends) watched the fireworks from the federal courthouse where she was working at the time. Little did I know that that may be the last fireworks any of us saw on the mall.

I called her and told her how a chill had come over me. Helicopters and fighter jets were omnipresent. What a different 4th. So upset was I, that I paid no attention to what I was doing and ended up sprawled across the 14th St. Bridge with a broken arm. So much for July 4, 2002.

So, at 8 am on July 4, 2003, the nation no longer on "orange alert" and George Bush spending the day in Ohio raising money, I set out to see what was happening in DC.

Beginning at National Airport all the way to the bridges, double wooden fence had been erected between the George Washington Memorial Parkway and the river. People would have to enter through "checkpoints."

There were cops at the marina, cops at the airport. On the bike path itself, which runs between the Potomac River and the Parkway, there were cops on foot ("passing on the left," I yelled, for which I got a threatening look), cops on bikes. To my left, on the grass, cops on horses. To my right, in the river, cops in boats. On the riverbank, cops in tents, cops in trucks. Overhead, cops in helicopters.

To my surprise, Memorial Bridge, which lies at the foot of the Lincoln Memorial, was closed to cars. Bikes could get in. But not before passing through "security." As I stood deciding what to do, cops approached me. Step forward, ma'm, he said. I looked at him. Did you hear me? I heard you, I said. What's this all about? I don't answer questions, I just do my job. Step forward. By then, several cops, menacing looking, too, surrounded me. Not your typical nice park police. Get off the bike, one said, and I did. He unzipped the carrier, took out the wallet and cell phone, and told me to step aside and come through the metal detector. Then I got the "wand treatment." You can leave now.

I circled the entire mall and saw more cops than people. While there were no passenger cars, there were plenty of police cars and trucks. Truck with satellite dishes. Trucks with more fencing to fence out the people.

I made my way along the Tidal Basin to the Jefferson Memorial. Cars were trying to park and were being turned away, but not before they were searched. They would have to drive to other side of the US Capitol, or along Maine Avenue, park, and walk the dozens of blocks back to the Memorial if they wanted to visit it.

Oh, yes, you could visit the Memorial. A large tent staffed with dozens of cops, a walkway with a metal detector, a place to have your backpack searched-that's all that stood in your way. A large sign said, "Memorial open. Pass through security." I don't believe in an afterlife, but if there is one, I hope Jefferson is watching and shedding a tear.

I passed on the opportunity to commune with him. Not before thinking how life had changed forever in the nation's capital. Not because of 9/11, not because of Osama bin Laden, not because of Saddam Hussein. But because George Bush, the bully, the tyrant, the cowboy who highjacked the election, George Bush had hijacked the 4th of July.

Now, two years later, I still haven't been back to the Mall--not for the 4th, not for any reason. And I am not going today. The fences were in place more than a month ago, lining the George Washington Memorial Parkway. Security cameras are mounted on trees, stoplights, and rooftops. There weill be hundreds and hundreds of cops lining the streets, infiltrating the crowd. They will be looking for "terroroists," and they know one when they see one. So they tell us.

Tonight, after fireworks, people leaving the mall in their cars will be directed along "evacuation" routes--to test the city's emergency evacuation plan (I wonder where they are going to have the people run to? The suburbs? That will save them from a terrorist attack?).

Brave souls trying to get on the mall will pass through numerous security "checkpoints," with all bags and backpacks thoroughly searched. I don't know what it takes to get singled out for special "security measures," but I am betting it could be certain types of food or, heaven forbid, reading material to while away the waiting for the fireworks.

This July 4th I am biking, but not to the mall. I will bike to George Washington's home a few miles from mine, Mount Vernon. I will stand at the gates and wonder what George would make of the tyranny that another George has created not just in Washington, DC, but around the world.

July 4th now for me is a day of mourning, not celebration.

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Jeb Bush, Still Playing Politics Over the Dead Body of Terri Schiavo

By Elaine Cassel Sun., Jul. 3 2005 at 10:55 PM
Categories: Imported

On March 31, Teresa "Terri" Schiavo died. But the controversy over her case, it turns out, may live on - not only in the media, but perhaps in court, as well.

On June 15, Pinellas County Medical Examiner Jon Thogmartin released his long-awaited, thirty-nine-page autopsy report on Terri - a report that included extensive evidence from neuropathologists who had examined her brain and spinal cord.

The report's findings, in general, supported the position of Terri's husband, Michael - as opposed to that of her parents, who had suggested she had shown signs indicating significant brain activity in her last days. It is unsurprising, then, that within hours of the report's release, Terri's parents denounced it as inaccurate. (Florida Governor Jeb Bush, however, has not yet challenged the report, and may never do so.)

In particular, the report showed that, as over a decade of court wrangling had already proved, Terri had been in a persistent vegetative state (PVS). Indeed, the report also found that her brain had atrophied to half normal size, and that she was blind, the visual areas of her brain having been destroyed.

Nevertheless, the autopsy left an opening for politics to once again insert itself into the case - prompting Gov. Bush to instruct the state's Attorney General to investigate Michael Schiavo.

As I will explain, there is no good reason to investigate. Rather, this investigation is simply a continuation of the politics that have always surrounded the Schiavo case, as I argued in an earlier column for this site.

Nationwide, as much as 70 percent of the American people believe that Congress had no business stepping in the Schiavo case in the first place. And now, Americans' message is clear: Let's close the book on this tragic situation, and go on to address all the other pressing issues we must confront. But, apparently blinded by ambition, Gov. Bush is not listening.

A New Mystery: The Cause of Terri's 1990 Collapse

Although it resolved the debate on Terri's condition, the autopsy report, unintentionally perhaps, reopened the debate on the reasons for Terri's collapse on February 25, 1990. That incident stopped her heart and deprived her brain of oxygen for a period of time sufficient to leave her in a vegetative state.

It had been thought by many that Terri had had an eating disorder, bulimia, that had dangerously lowered her potassium levels. But Thogmartin found no evidence of bulimia - a disorder that can, for instance, leave traces on the esophagus. Moreover, like many investigators before him, Thogmartin did not find any evidence of any kind of trauma that could have caused Terri's collapse.

So why did Terri collapse - if not as a result of bulimia or trauma? It's not clear.

And, more to the point, why did her collapse transform her into a PVS patient? Possibly, that result may have been due to the treatment she received, or failed to receive, after her collapse.

It was on this theory that Gov. Bush called on Florida's attorney general to investigate Michael Schiavo, on the speculation that he might have delayed in calling for emergency assistance the day of her collapse.

It's true that Michael gave conflicting times, as much as 30 minutes apart, when asked when he called 911. But as he testified in prior court hearings, that's because he had to estimate. Understandably, he was not looking at his watch when his wife collapsed and he, presumably, frantically tried to get help for her.

Recall the last emergency situation you were in - can you remember exactly when it began, when it ended, or how long it lasted? Doubtless, you remember the sequence of events, but could you reconstruct a timeline? Time can seem to distort in an emergency - with events happening much more slowly than they actually occurred. A quick car accident can seem to take forever, for instance; time can seem to virtually stop.

The New Investigation of Michael Schiavo: An Abuse of Executive Power

Michael Schiavo not only has provided a credible explanation for the different times he gave for his 911 call; he has also been found, repeatedly, by judges, to be telling the truth about issues surrounding Terri's death.

Terri's parents had long accused Michael of causing Terri's initial collapse. Then, after the collapse, they have accused him of abusing and neglecting her in the years between her hospitalization and her death. These cruel charges are rebutted by the fact that Michael tried all kinds of therapy for Terri in the early years after her collapse, none of which helped her.

Florida authorities under the control of, and presumably sympathetic to, Gov. Bush, repeatedly investigated Michael, and found no evidence to support any allegations against him. Governor Bush must be well-acquainted with these prior investigations and their results, as he repeatedly called for them and repeatedly cited them as proof of his concern for Terri. Why, he even called for one more investigation in the last days of Terri's life!

Further, the reports and transcripts absolving Michael of any wrongdoing are repeatedly cited in the very autopsy report that the Governor says prompted him to call for yet another investigation.

Governor Bush Should Confine His Campaigning to the Editorial Pages

This call for a new investigation has nothing to do with the autopsy report. The real motive is ambition - Jeb Bush's political ambition.

But that is no reason to continue to ruin the life of a private citizen whom no court has ever found to have done anything wrong - and who has said, all along, that he only fought to honor his wife's wishes.

Ambition, though, is powerful - and Jeb Bush may aspire to the Presidency. Indeed, according to E. J. Dionne of the Washington Post, a source floated to Dionne the suggestion that Republicans are considering a John McCain-Jeb Bush ticket for the 2008 Presidential race. If so, that would set up a possible Jeb Bush run for the presidency - even one as early as 2012, if McCain, who'd then be in his mid-seventies, declined to run again.

Ambitious as he is, Gov. Bush ought to keep his campaigning based on the exploitation of the Schiavo tragedy out of the courts. He is free to use the media to continue to cater to his political base, as he has already done. For instance, last week when the New York Times ran an editorial commenting on the autopsy report and the politics that embroiled both Bush brothers in a family matter, Gov. Bush responded with a fiery letter in his own defense, in which he promised to continue to defend the "rights" of every "vulnerable" citizen.

Gov. Bush should rethink his call for yet one more investigation into Michael Schiavo. After over a decade of litigation, and both state and federal intervention, his efforts to make Terri's husband into a villain--and himself into a hero--have failed.

His outright stubbornness on this issue demonstrates his continuous catering to the extreme elements in the Republican Party. To win higher office - even to gain a spot on that hypothetical McCain ticket - he will have to please moderates as well, and do so by taking on issues that are appropriate for politicians to tackle.

End-of-life family issues are not among them. 
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Why This Liberal Will Miss Justice Sandra Day O'Connor

By Elaine Cassel Sun., Jul. 3 2005 at 10:46 PM
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On Friday, July 1, I was preparing to debate issues related to Bush's judicial nominees with an employee of a well-known conservative "think tank."  The audience was a group of 400 high school students in Washington, DC for a week.

My opponent's think tank connection had a scoop—at 9 am his "office" had learned that Justice Sandra Day O'Connor would be submitting her resignation to the White House an hour later. I knew what my opening statement was going to be about. We each had an opening 4 minutes to talk about anything we wanted to. I told my opponent—let's call him Mr. Republican—that he could go first.

After announcing the O'Connor resignation, he waved the Constitution (note to Mr. Republican: You are no Harry Byrd!). and said how happy "we" were that O'Connor was leaving—by "we" it was unclear if he meant his think tank or all Bush supporters. He said it was time to put an end to the runaway judges who were acting contrary to the Constitution. O'Connor was the worst kind of activist, he said.

I was a little shocked that he attacked her so. So I jumped in and said why I, who disagreed often with O'Connor's decision, felt that the Court—and Americans—had lost an honorable public servant and a critical member of the Supreme Court.

O'Connor, I said, always considered how her decision would affect the people whose case was before her to be judged. That is why her opinions often appear straining at gnats to achieve some logic. Sometime, the logic was missing. But a sense of injustice and a desire to do justice generally shown through. In an abortion case dealing with parental notification, for instance, she worried about a girl having to approach an abusive father who might be even more abusing when he finds out his teenager daughter is pregnant. As for a young mother was arrested (yes, arrested, and taken into custody) for violating a seat belt law in  Texas, she expressed outrage. They arrested a mother, who had a car full of kids, and who was pregnant, and took her to jail, in the pouring rain? That can't be right, she argued. And her outrage carried the day. There are many such cases. Of course, there are many cases where she turned a blind eye to justice for the people, and ruled for big business. But no one showed quite the care she did when she did.

What I said to the young people on Friday was, maybe because of her temperament, her age, her upbringing, or her experiences—or all of the above—she never seemed to lose touch with everyday life. She worried about how her decisions would play out in the lives of people.

"That's just the problem," Mr. Republican Party-Line blurted out. Judges aren't supposed to care about people. They are only supposed to care about the law. That is why "we" are so glad that "she" is gone. Waving the Constitution again, he warned, that the Constitution required that O'Connor, and her fellow jurists, decide the law "as the framers meant it at the time" (ah, an Originalist, in the fold of Scalia, I thought), not what a judge thinks it ought to mean today. He went on to whine about how his public high school had students "bussed" in to create "diversity," and how he could not pray in school. And how he was going back to his home state and running for office, to make his country the way he—and Bush—want it to be.

I had little time to rebut this one, but I got in how the law was a social institution, created by people. How the Declaration of Independence, which we celebrate today, speaks of a government being of the people, by the people, and for the people. What is the law if not a tool of the people? A servant of the people? What kind of judge does not care for people?  There is an answer to that rhetorical question. Most of George Bush's judges don't get a damn about people. Except, perhaps rich people.

I think I won that round and 400 impressionable minds came away with a more honest view of O'Connor than they would have gotten if Mr. Bush mouthpiece had been left to his own devices.

What I did not have time to talk about was another reason why Justice O'Connor will be missed: She was a lady, in a time when there are few ladies in this world. She had a sense of decorum about the law, the Court, and her place in it. Unlike some of her colleagues on the bench, who have raised ad hominem attacks to an art form, she never denigrated fellow justices.

She was proud of her ability to listen to all sides of an argument before deciding --a novel  concept for a judge, and one not on Bush's list of qualifications. Indeed, listening to all sides is likely a disqualifier for a Bush nominee. She said she was always read to be "persuaded."  She did not call her fellow brethren/sister names if they did not agree with her.

She was a model of judicial temperament—firm, stern, but affording litigants a fair hearing and, according to accounts of her law clerk, fair and full deliberations.  She worked hard, long hours. She worked through breast cancer. She donned a wig and came to work, never missing a day of oral arguments, never missing out on an opinion. Like Chief Justice Rehnquist, she put those of us to whine about a cold to shame.

If you read the opinions of most of the judges on Bush's short list, you will find, I bet, lots of meanness, pettiness, doctrinaire ideologues, and lack of compassion. You will find plenty like Clarence Thomas who, in a case a few years back, said, in dissent, that a state prisoner could tie up a prisoner to a hitching post in the boiling hot sun and deny him water or shade. Yea, that kind of justice is what the Republicans want. They would have one of these in Janice Rogers Brown or Michael Luttig. Luttig is famous for saying that there are absolutely no limits on presidential power in the" war on terror." Janice Rogers Brown is so out there, so mean-spirited, that she could be the female Scalia. Sharp, stinging opinions often insult her opponents.

Maybe a Democrat justice would be the same today. Maybe the age of civility of temperament, and compassion for one's sister and brother is an old-fashioned virtue that can't be found in the 50psomethings Bush wants on the bench. Black, white, Hispanic, male, female—I bet there is not one on the list that gives a whit for people, or believes that justice should be tempered with mercy--and common sense.

Hardliners all, Bush's judicial nominees, many of whom are already on the appellate bench, will soon, through their opinions, usher in an age of conservative, hard-line judicial activism that will take away established rights, subordinate the interests of people to that of the government and business, and leave us longing for the Rehnquist court. (Not that the people haven't lost a lot of rounds in the past 25 years, but those losses will pale in comparison to what we can expect when Bush puts two, maybe three, hard right ideologues on the bench. How about instead of one Thomas and one Scalia, we get two of each?)


And longing, notably, for Sandra Day O'Connor. A plain-spoken woman who understood that her rulings affected real people with real problems. And that those people were who she was there to serve.She served us well—Republicans and Democrats, conservative and liberals. On one of the Sunday talk shows yesterday, some Republican assailed her for  trying to decide a case so as to insure social stability within the confines of stare decisis. We don't need to overturn, Roe v. Wade, she argued. We have been down that road before. It is the law of the land. What's wrong with that, asked the host? What's wrong with it, said the Republican, is that is not her job. Her job is to decide the constitutional issues in the wary the framers meant it, there is not right to privacy in the Constitution, blah blah blah, and Roe v. Wade must be overturned in order to bring the law back in line with the Constitution.

But the Republicans have disowned her, or at least distanced themselves from her, so wise Democrats are doing the right thing to urge that Bush nominate someone like Sandra Day O'Connor.  And when they say "like," they mean a pragmatic consensus-builder who was concerned about how her decisions would affect litigants and society.

Republicans, rest easy. Bush is not interested in putting someone on the bench who shares O'Connor's personal and judicial temperament. This is the age of the "nuclear" option, of "shock and awe," of "slash and burn."  The Bush administration believes it is its divine right to remove all sense of humanity from the courts of this land. Administration spokespersons say Bush owes it to his constituents to put the kind of person on the  high court he said he would—someone like Thomas and Scalia.

That's the last thing we need. But that is what we will get. And if Rehnquist resigns or dies in office. We will get another justice devoted to the Bush world view.  Anyone except a rich white man better start turning back the clocks now. Because you are going to have to turn them way back, and forget the past 50 years of Supreme Court decisions. Bit by bit, the rights and freedoms we hold dear will be chipped away by a gang of 9 that will be increasingly turning deaf ear to all but what Republicans hold dear—money and power. Power and money.


So, Hail to the Chief. And goodbye, Justice O'Connor. You were, as you hope to be remembered, a great role model for women (and men), mothers (and grandmothers), and all citizens. Your devotion to your work, your work ethic, your temperament is a relic of a better time. Most of all you were, as you said you want to be remembered, a good judge.


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The Troubling Case of Ahmed Abu Ali

By Elaine Cassel Mon., Mar. 14 2005 at 5:55 PM
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Twenty-three-year-old, Houston-born American citizen Ahmed Omar Abu Ali has been returned to Virginia after twenty months in solitary confinement in a Saudi Arabian prison. But he returned only to face arraignment, on February 22, in U.S. District Court in Alexandria, Virginia.

The charge is that he conspired to commit terrorism- and, indeed, the FBI says that he admitted as much in the course of interrogations in Saudi prison. He is alleged to have plotted to assassinate President Bush - but is not charged with that conspiracy.



The case is far from as open-and-shut as the FBI might suggest. Indeed, a number of aspects of the prosecution are deeply troubling.

The Early History of Abu Ali's Case: The Government Reverses Itself

At the end of the 2003 academic year at the Saudi university he was attending, Abu Ali failed to return home to the U.S. As a result, his family - Jordan-born, naturalized U.S. citizens living in Northern Virginia where I practice - contacted me to see if I could help.

In August 2004, attorneys filed suit in the U.S. District Court of the District of Columbia, on behalf of Abu Ali's parents, in order to obtain his release. Among the attorneys was renowned constitutional rights scholar and Georgetown University law professor David Cole.

The day the suit was filed, the State Department - which had previously refused to provide information to Abu Ali's parents - notified them that their son would be charged with crimes of terrorism in Saudi Arabia. But that never happened. Instead, the question of whether Abu Ali could be returned to the U.S. was litigated.

Before U.S. District Judge John Bates, the government took the position that Abu Ali was far too dangerous to ever be returned to the United States, and that the reason was so serious that it could not be disclosed even to the family's attorneys. In other words, the government sought to proceed on secret evidence.

Then, the government reversed itself dramatically. It transported Abu Ali to the United States itself - thus mooting the question before Judge Bates of whether the government could proceed upon secret evidence to block his return.

In 2004, when Abu Ali's parents had been begging the U.S. government to intervene, it had refused - claiming it was up to the Saudis whether he was released. With his return, however, it began to seem evident that the Saudis had been holding Abu Ali with U.S. consent - indeed, even at the U.S.'s behest. It now appears that FBI agents had the Saudis remove Abu Ali from his university class and take him to a Saudi facility for questioning in the summer of 2003.

It also became apparent that the U.S. could, all the time, have ensured Abu Ali's return to the U.S. whenever it felt like it. After all, federal prosecutors had, during this time, extradited from Saudi Arabia to Alexandria another man in Saudi custody who was alleged to be (and acquitted of being) a terrorist and involved in the case of the Alexandria 11.

Apparently, however, the U.S. had taken advantage of this U.S. citizen's choice to attend school abroad, to make sure he was held in prison there - where torture would be permitted, and counsel would not be provided. Indeed, unidentified sources have been quoted in the Washington Post and New York Times as saying that the government certainly would have preferred to have left Abu Ali in Saudi Arabia.

It was only Judge Bates's interest in Abu Ali's case that changed the government's mind. Laudably, Bates was concerned - as we all should be -- about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.'s consent, in a foreign prison where due process is ignored and torture is common.

With Judge Bates perhaps unwilling to proceed against Abu Ali in absentia, the government felt it had to bring him home. To do so, they had to charge him with something--something that would at least sound serious, even if the underlying indictment (as I will explain below) fell far short of the media headline.

The Government Argues Abu Ali Ought to Be "Presumed Dangerous"

Abu Ali was arraigned, as noted above, on February 22. On February 24, a hearing on whether he would be released prior to trial was to occur. But the government managed to delay that hearing. It did so by arguing that the usual standard for pre-trial release should not apply.

Typically, in a criminal case, to block a defendant's release on bail, the government must prove the defendant's dangerousness or his likelihood of fleeing. But here, the government took the position that the defendant, Abu Ali, had the burden of proving to the court that he would not be a danger to national security, before being released on bail. It did so based on 2004 federal legislation stating that people charged with terrorism-related crimes were presumed to be too dangerous to be released unless they proved otherwise.

The Eighth Amendment requires that "excessive" bail shall not be required, and constitutional due process applies to federal pre-trial criminal proceedings. Moreover, two centuries of law have mandated that the government has to prove that a defendant would be a flight risk or danger to the community if not released on the condition he pay bail and/or comply with other requirements.

More fundamentally, our system depends on the idea that we jail people for criminal conduct, not merely the government's insistence that they are "dangerous." In order to honor this principle, we have made sure that we have no common law crimes - only those specifically defined by statute.

The importance of this principle simply cannot be overstated. Without it, governments could simply lock up unpopular minorities, political opponents, and political dissidents - and as South American and Eastern European history shows us, they have.

The Government Relies on a U.S. Citizen's Saudi-Prison Confession

At the hearing on the bail motion, an FBI agent testified that Abu Ali had confessed to Saudi officials that he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting. (These persons are named in the indictment as unindicted co-conspirators.) The government also claims to have a videotape of this confession.

Abu Ali's attorneys argued that if Abu Ali indeed confessed, he did so under extreme conditions of confinement - conditions that included torture. Confessions under such circumstances are not only deeply inhumane; they are also notoriously unreliable.

They also pointed out that Abu Ali had repeatedly been denied the right to an attorney. Abu Ali's parents had asked the U.S. consulate in Saudi Arabia -- who had infrequently sent an employee to visit Abu Ali in prison -- to provide their son with an attorney. They were told the Saudis would not allow it. Accordingly, no attorney ever met with Abu Ali while he was incarcerated and doubtless tortured in Saudi Arabia.

Hopefully, the Alexandria judge will exclude the confession from evidence to be heard at Abu Ali's trial. He could do so on the ground that Abu Ali was, in effect, in U.S. custody - and thus, his Fifth Amendment rights were violated. Or, the judge could do so on a simpler ground: that the prejudicial effect of coerced confessions outweighs their probative value. (Federal trial judges may make this prejudicial effect/probative value balance for any piece of evidence the government seeks to offer.)

The Government Searches Abu Ali's Parents Home pursuant to the USA PATRIOT

The government also admitted at the bail hearing that it had secretly raided Abu Ali's parents' home in 2003 - apparently pursuant to the USA PATRIOT Act -- and found what it deemed to be "radical" Islamic writings. It also found a gun magazine - hardly unusual for Virginia.

This search had occurred incident to the prosecution of the "Alexandria 11." I have written about this group in an earlier column. Abu Ali and his parents were certainly not among them - but because they lived in the same community, apparently they fell under suspicion anyway.

In Abu Ali's case, the government was able to use two arguably unconstitutional laws--the USA PATRIOT Act, which allows secret, warrantless searches, and the law the government invoked, which allows pre-trial dangerousness to be presumed. Through the combination of these laws, it was able to search secretly for supposed evidence of dangerousness, craft an overblown indictment, flood the media with dramatic press releases, and then dare the defendant to prove his innocence.

The Government's Indictment: Where's the Conspiracy?

When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu Ali tied to any terrorist event or action. So what is his crime?

Plainly, there was not enough support for a charge of conspiracy to assassinate President Bush. Conspiracy requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.

So, instead, the indictment simply charges Ali with having "associated" with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them - for what purpose, it is unclear.

The very reason that the law of conspiracy requires an agreement and an overt act is to prevent prosecutions like this one - based on alleged, vague discussions that supposedly took place, but were never acted upon.

What Abu Ali's Case Signifies for America and the Rule of Law

The next development in the Abu Ali case may be a plea agreement. The government's case is obviously weak, and its evidence depends on conduct that many view as unconstitutional - even appalling.

The government will be in the same bind it is in the Zacarias Moussaoui case. There, it has successfully argued that it cannot produce witnesses because they are of such high intelligence value to the government that they have to be kept in secret. It has also argued that given that this is the case, the defendant can't subpoena these witnesses because their appearance, pursuant to Moussaoui's Sixth Amendment right to face his accusers, would be a grave threat to national security.

If prosecutors offer Abu Ali a deal and he refuses, he will sit in jail for years as the case winds it way through appeal after appeal, as his occurred in the Moussaoui saga.

If Abu Ali pleads guilty, he will no doubt be placed under a gag order, like that imposed on John Walker Lindh. It will require, most certainly, that he never speak in public about anything related to the court case, or about what happened to him while he was in Saudi custody.

The plea agreement may also require that Abu Ali return to Saudi Arabia - as the agreement the government entered into with U.S. citizen Yaser Hamdi did - even though that means he will be separated from his family. (The agreement followed upon Hamdi's victory in his Supreme Court case.)

Speaking of his family, Abu Ali's family have not been able to visit him since his return because they refused to agree to the government's rules: An FBI agent had to be present during the visits, all their communications had to be in English, and they could make no comment to anyone, including the press of course, about any aspect of their visit. Is it any wonder they refused?

To add insult to injury, the family has been ordered not to "communicate" with their son in the courtroom. Did this extend to a smile, a loving glance, they asked the magistrate?

If Abu Ali's case does end in a plea agreement - or, worse, in a precedent blessing this prosecution as constitutional - Americans' rights will have been very significantly diminished.

Such a result will mean that this nightmare is viewed as an entirely legal reality: The U.S. can work with a foreign government to arrest and imprison a U.S. citizen and torture him. It can allow the imprisonment to go on indefinitely; Abu Ali's took over twenty months.

Citizens of U.S. allies, too, should beware: Canadian citizen Maher Arar was kidnapped by CIA operatives from New York's Kennedy airport, and taken to Syria for "questioning." There he remained for a year, until Syria got annoyed with the United States and returned Arar to Canada.

Then, if the U.S. (or allied country) citizen confesses under torture - and virtually everyone does, even if the confession is a lie - the U.S. may try to use the confession against him in a U.S. court, as well in a foreign court. (We don't know why the intended Saudi prosecution of Abu Ali got sidetracked. Could it be because the Saudis thought, as did the Syrians about Maher Arar, that no crime had been committed?)

But, readers may object, what if the U.S. really thinks Abu Ali is a terrorist? The answer is that the U.S. can still protect its citizens from him - consistent with the Constitution.

How? The U.S. could have promptly extradited him from Saudi Arabia to face charges here. Once he was here, it could have honored his right, as a U.S. citizen, to an attorney, a speedy trial, and a right to pretrial release unless the government proved that he was a danger or a flight risk.

This is not too much to ask. And it is what the Constitution requires.


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Elaine Cassel on Juvenile Confessions

By Elaine Cassel Sat., Feb. 19 2005 at 3:35 PM
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Standards Needed for Juvenile Confessions, Panelists Say

Cassel
Elaine Cassel said science is supporting the idea that juveniles don't understand the consequences of waiving their right to an attorney.

With scientific studies showing that juvenile brains are not fully developed and youth crimes being punished more harshly than ever before, children need more protections when police interview them, said panelists in the Conference on Public Service & the Law's juvenile law panel Feb. 12.

Recent research suggests that "most juveniles, at least below the age of 15, haven't a clue [as] to what they're waiving when they waive the right of an attorney," said Elaine Cassel, a Concord University School of Law professor and chair of the ABA Behavioral Sciences Committee.

When Cassel first started practicing law 26 years ago, juvenile courts handled even the most heinous crimes committed by children aged 15 and younger, and interrogators almost never questioned a juvenile without parental permission. Since then, a spate of school killing sprees has brought attention to youth crime. With mandatory minimums, three-strikes laws, and hard plea bargains as features of the court system, law enforcement has gotten tougher on juveniles too, and states are more likely to try kids as adults. Sixteen states, including Virginia, choose 14 as their cut-off age to try a youth as an adult, while six set the age at 13. Kansas and Vermont set their age at 10, while 23 states have no cut-off at all. "In states with no limit...children as young as 10 and 12 have been tried as adults," Cassel explained.

Cornell
"He was told if he was caught he must sacrifice himself for his father," Cornell said of convicted sniper Lee Boyd Malvo.

Cassel pointed to the Central Park jogger rape case as an example of the horrifying effects of false confessions by juveniles. Police had questioned teens aged 14 to 16 about the 1989 crime, none of whom admitted having intercourse with the victim, but who had, under pressure from interrogators, implicated each other. Although no physical evidence connected the boys to the crime, the confessions convinced the jurors who convicted them. In 2002 the real perpetrator surfaced as a result of DNA evidence and the original convictions were overturned.

"Juveniles, like adults, make false confessions, but make them more often," Cassel said, and under different circumstances for different reasons.

Alex and Derek King were convicted of second-degree murder in 2002 for killing their father, and told remarkably similar stories when they confessed. Yet prosecutors later tried a friend of the family for the same murder; the friend, a pedophile, had a sexual relationship with one of the boys and had talked them into killing their father, Cassel said, while plying them with marijuana. He told the boys they would not be convicted if they said their father beat them. The Kings' confessions were similar because their "friend" had coached them. The judge who presided over both cases overturned the boys' conviction and sentenced them to prison until they were 21.

Cassel explained that confessors have to be found "competent" and a confession must be voluntary to be admissible in court. A confession is voluntary if the confessor knowingly waives his rights to remain silent and understands the concept of self-incrimination. Cassel said research has shown that juveniles don't fully understand the consequences of their confession; they believe if they tell an officer what he wants to hear, they'll be able to go home. Juveniles also don't understand that an attorney would be on their side. Children "are more inclined to tell the truth," she said, which "may seal their fate."

Cassel said when a suspect is 10 years old or younger, judges should presume that confessions are not voluntary. She noted that Tom Grisso, a psychiatry professor at the University of Massachusetts Medical School whose research has been seminal in the field, suggests that those under 15 should be presumptively judged not competent.

Studies of the brain show a burst of development between the ages of 10 and 15, with the frontal cortex, the area responsible for judgment, becoming solidified during the ages 15 to 25.

"People are starting to accept this great neuroscience which now underpins the cognitive studies," she said.

Dewey Cornell, a defense expert witness for convicted sniper Lee Boyd Malvo and a clinical psychologist and professor of education at U.Va.'s Curry School of Education, noted that the nature and quality of confessions are very important to the jury.

Malvo's case highlighted the vulnerability of adolescence, Cornell said, because his emotional dependence on John Muhammad played a key role in his behavior. The case showed that indoctrination can change an adolescent's belief system and "can lead him to sacrifice himself."

Although Malvo was shipped from caretaker to caretaker as a child and often switched schools, his peers and teachers described him as "fairly well-adjusted" and "friendly and well-mannered." Classmates saw a change in him after he met Muhammad, who impressed upon him that whites oppressed blacks. Muhammad trained Malvo to be a soldier—desensitizing him to violence and using violent video games such as those used by the military. He became a "soldier on a mission" to overturn the government and free black people from oppression.

"He was told if he was caught he must sacrifice himself for his father," Cornell said. When arrested in October 2002, Malvo claimed he shot all the victims, and "didn't portray the kind of remorse that defense attorneys hope to see." By June 2003 Malvo recognized he had been manipulated, and began to tell a more complete confession, Cornell said, even explaining crimes that had not come to light.

Cornell said that although Malvo's was an extreme case, the effects of indoctrination are apparent in cults and gangs, which give teens a sense of identity and membership. The gang leaders "seem to be a better parent," and test members by asking them to carry out certain acts.

Cornell said officers should take into account the influence of gang leaders when evaluating confessions. There are 21,500 gangs in the United States, with 731,500 gang members. About half of homicides in Chicago and Los Angeles are gang-related.

Garrett
Brad Garrett: "My job basically is to find the truth."

Brad Garrett, a special agent for the FBI and Malvo's chief interrogator, said law enforcers just want to figure out who committed a crime, and the legal system can scrutinize the value of a confession. "My job basically is to find the truth," he said. Garrett solves Washington, D.C., homicides, many of them committed by 14- to 17-year-olds. The FBI in general interviews a lot of children, he said, because they are often victims on Indian reservations or in Internet porn cases.

"I obviously do not want someone to tell me something that is not the truth," Garrett said, noting that he prepares for interviews by knowing the facts of the case. "If you can't articulate facts that I know are true, then I know you're not telling the truth.

"The key [to avoiding false confessions] is not to tell them the facts," Garrett added. He said he always talked to prosecutors before going to arrest a suspect, and spent hours reviewing the Malvo case prior to the interview. The reality is, "people don't talk to you unless they want to talk to you." Sometimes a suspect needs to feel comfortable first, so "you try to develop a rapport with the person you're talking to."

Garrett said he tries to show respect toward suspects, for example taking a sex offender into custody so there's no one around to witness the arrest. "How I treat them, is how they're going to talk to me."

Cornell said that although Garrett, who has a Ph.D. in criminology, may approach the interview like a therapist, the problem is that there are "no clear standards" when interviewing children. The Central Park jogger case shows there can be incredible pressure on suspects to implicate themselves or others, he pointed out.

Interrogators can even lie to suspects during interviews, added panel moderator Andy Block, director of the JustChildren Program at the Legal Aid Justice Center.

"Law enforcement is really not educated to interview people," Garrett replied. Many officers switch beats many times and learn a lot on the job.

Cornell suggested that police should be required to give parents notice when they want to interview a juvenile, and if a suspect is very young, require parents to be present or involved in some tangible way.

Garrett responded that there were hundreds of cases in big cities that involve youths. "You're just not going to be able to be that sensitive," he said, noting that it boils down to the ethical boundaries of interviewers. High-profile cases like that of the Central Park jogger undoubtedly involve more pressure, and some detectives may crack.

Garrett said he's had interviewees falsely confess before, but explained that it was easy to spot because the facts didn't add up.

Block suggested that perhaps juvenile confessions could be taped, but Garrett said there are logistical issues to consider: there are only so many rooms that are equipped with audio and video equipment in police stations, and lengthy interviews would be difficult to tape. Garrett said he does occasionally tape the actual confession rather than the interview leading up to the confession.

Cassel noted that in the Malvo case a jurisdictional issue kept a court-appointed guardian and attorney blocked from the interview, although they banged on the door to get in. "There ought to be an age at which kids are not questioned" without an attorney or parental involvement, she said.

Block pointed out that parents could have a detrimental effect by giving directions no defense attorney wants a young client to act upon: "tell the truth."


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The Lynne Stewart Verdict: Stretching the Limits of Terrorism

By Elaine Cassel Wed., Feb. 16 2005 at 7:27 PM
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On February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism.

Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.



The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney's ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment's right to counsel cannot be served while the government is a third party present at attorney-client meetings.

Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.

Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.

The Facts of the Case

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.

Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).

Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik's confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.

The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.

For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.

As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner's communications or contacts with the outside world - including visitors, and the media -- when the government believes "that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons."

The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of "legal representation" and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.

Stewart agreed to the SAMs - having little choice, as it was the only way she could visit her client.

What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.

The Eavesdropping Regulation: How the Government Made Its Case

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody.

There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial - and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."

No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.

The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.

The government alleges that Stewart never intended to abide by the SAMs, and that - as, it say, it discovered by eavesdropping - she violated them in several ways.

Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government's surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.

In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was "withdrawing his support for a ceasefire that currently exists" with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in Luxor, Egypt, in a bid to win the sheik's release). The government charged that the press release was a veiled message for the shiek's followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.

Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)

In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.

Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik's followers, or the statement by the Sheik given to Reuters.

Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.

The Constitutional Issues The Eavesdropping Regulations Raise

Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional - and thus that evidence procured as a result of surveillance should not be admissible at Stewart's trial. Although Tigar and Stewart lost their motion, their argument was a strong one.

The Sixth Amendment guarantees a criminal defendant's right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney - and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?

The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.

Judge Koeltl's Rulings on the Terrorism Claims

Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.

The "defrauding the government" charge was weak: It was based on the government's allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart's intention, instead, was to abide by the SAMs in order to continue to represent her client.

Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing "material support" for terrorism - regardless of one's intent in doing so.

The government said Stewart violated the statute by making Rahman's message available to the press. (Where was the "material" support? The government said it came in the form of "personnel" - meaning, Stewart herself.)

Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way - to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart's case was too vague to satisfy Due Process requirements.

So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute - one that, unlike the first statute, requires intent.

Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.

What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman's followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.

This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that

Stewart knew she was providing resources to carry out a specific violent crime.

The Stewart Conviction is a Warning to Defense Attorneys

Stewart's defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.

The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.

Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?

Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client's case before the public and the government, and ultimately hoping to gain his release to Egypt.

The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.

Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations - and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.

Now, however, the First and Sixth Amendments have been gutted--at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.

Defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism -- now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.

How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?

If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.

The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.

The Ashcroft Justice Department showed disdain for attorneys--save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." (Emphasis added.)

This is pure hyperbole - treating Stewart's willingness to assist her client in putting out a press release as the moral equivalent of financing or arming terrorists. It furthers the lie that a terrorist's lawyer, by zealously representing her client, at the same time aids and abets terrorism.

Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus.

What attorneys will risk their licenses --and life in prison --in order to protect their rights.

On February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism.

Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.

The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney's ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment's right to counsel cannot be served while the government is a third party present at attorney-client meetings.

Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.

Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.

The Facts of the Case

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.

Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).

Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik's confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.

The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.

For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.

As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner's communications or contacts with the outside world - including visitors, and the media -- when the government believes "that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons."

The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of "legal representation" and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.

Stewart agreed to the SAMs - having little choice, as it was the only way she could visit her client.

What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.

The Eavesdropping Regulation: How the Government Made Its Case

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody.

There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial - and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."

No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.

The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.

The government alleges that Stewart never intended to abide by the SAMs, and that - as, it say, it discovered by eavesdropping - she violated them in several ways.

Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government's surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.

In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was "withdrawing his support for a ceasefire that currently exists" with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in Luxor, Egypt, in a bid to win the sheik's release). The government charged that the press release was a veiled message for the shiek's followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.

Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)

In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.

Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik's followers, or the statement by the Sheik given to Reuters.

Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.

The Constitutional Issues The Eavesdropping Regulations Raise

Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional - and thus that evidence procured as a result of surveillance should not be admissible at Stewart's trial. Although Tigar and Stewart lost their motion, their argument was a strong one.

The Sixth Amendment guarantees a criminal defendant's right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney - and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?

The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.

Judge Koeltl's Rulings on the Terrorism Claims

Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.

The "defrauding the government" charge was weak: It was based on the government's allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart's intention, instead, was to abide by the SAMs in order to continue to represent her client.

Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing "material support" for terrorism - regardless of one's intent in doing so.

The government said Stewart violated the statute by making Rahman's message available to the press. (Where was the "material" support? The government said it came in the form of "personnel" - meaning, Stewart herself.)

Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way - to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart's case was too vague to satisfy Due Process requirements.

So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute - one that, unlike the first statute, requires intent.

Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.

What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman's followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.

This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that

Stewart knew she was providing resources to carry out a specific violent crime.

The Stewart Conviction is a Warning to Defense Attorneys

Stewart's defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.

The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.

Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?

Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client's case before the public and the government, and ultimately hoping to gain his release to Egypt.

The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.

Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations - and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.

Now, however, the First and Sixth Amendments have been gutted--at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.

Defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism -- now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.

How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?

If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.

The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.

The Ashcroft Justice Department showed disdain for attorneys--save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." (Emphasis added.)

This is pure hyperbole - treating Stewart's willingness to assist her client in putting out a press release as the moral equivalent of financing or arming terrorists. It furthers the lie that a terrorist's lawyer, by zealously representing her client, at the same time aids and abets terrorism.

Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus.

What attorneys will risk their licenses --and life in prison --in order to protect their rights.


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Imported

A President--and Attorney General--Above the Law

By Elaine Cassel Fri., Feb. 4 2005 at 8:31 AM
Categories: Imported

AlterNet

Respecting the Spirit and Letter of the Law

By Senator Robert Byrd, AlterNet
Posted on February 3, 2005, Printed on February 4, 2005
http://www.alternet.org/story/21170/

Sen. Byrd delivered the following remarks regarding the nomination of Alberto Gonzales to be the nation's next attorney general. During the speech, the senator expressed strong concerns about Mr. Gonzales' role in the prisoner abuse scandals that have arisen from cases in Iraq and Afghanistan and at Guantanamo Bay, and the use of torture as an approved American interrogation policy. Sen. Byrd also told his colleagues that the nominee, as the White House counsel, has been responsible for programs and policies that undermine the principles of the Constitution of the United States.

Alberto Gonzales is counsel to the president of the United States. For the past four years, Alberto Gonzales has served as the chief legal advisor to President Bush, housed in the West Wing of the White House, a stone's throw from the Oval Office.

The official biography of Alberto Gonzales on the White House web site states that, before he was commissioned to be White House counsel, Judge Gonzales was a justice on the Texas Supreme Court. Prior to that, he served as the 100th Secretary of the State of Texas, where one of his many duties was to act as a senior advisor to then-Gov. George W. Bush. Before that? He was general counsel to Gov. Bush for three years.

So, for over a decade, Alberto Gonzales has been a close confidante and advisor to George W. Bush, and the president has confirmed his personal and professional ties to Judge Gonzales on many occasions. The president has described him as both a "dear friend" and as "the top legal official on the White House staff." When he nominated Alberto Gonzales to be the next attorney general of the United States, the president began by asserting, "This is the fifth time I have asked Judge Gonzales to serve his fellow citizens, and I am very grateful he keeps saying 'yes' ... as the top legal official on the White House staff, he has led a superb team of lawyers."

In praising his nomination of Alberto Gonzales, the president specifically stressed the quintessential "leadership" role that Alberto Gonzales has held in providing the president with legal advice on the war on terror. The president stated specifically that it was his "sharp intellect and sound judgment" that "helped shape our policies in the war on terror." According to the president, Alberto Gonzales is one of his closest friends who, again in the words of the President, "always gives me his frank opinion."

Imagine, then how perplexing and disheartening it has been to review the responses, or should I say, lack thereof, that were provided by Alberto Gonzales to Members of the Senate Judiciary Committee at his confirmation hearing on Jan. 6. It seemed as if, once seated before the committee, Judge Gonzales forgot that he had, in fact, been the president's top legal advisor for the past four years.

It was a strangely detached Alberto Gonzales who appeared before the Senate Judiciary Committee. Suddenly, this close friend and advisor to the president simply could not recall forming opinions on any number of key legal and policy decisions made by the Bush White House over the past four years. And this seemed particularly true when it came to decisions which, in retrospect, now appear to have been wrong.

When asked his specific recollection of weighty matters, Judge Gonzales could provide only vague recollections of what might have been discussed in meetings of monumental importance, even during a time of war. He could not remember what he advised in discussions interpreting the U.S. law against torture, or the power of the president to ignore laws passed by Congress — discussions which resulted in decisions that reversed over 200 years of legal and constitutional precedents relied on by 42 prior presidents. That's pretty hard to believe.

In fact, if one did not know the true relationship between the president and this nominee, or had never heard the president refer to the "frank" advice he has received from Judge Gonzales, one would think from reading his hearing transcript that Alberto Gonzales was not really the White House Counsel. Instead, one would think he is simply an old family friend who, yes, is happy to work near the seat of power, but makes no big decisions, has no legal opinions of his own, and certainly feels no responsibility to provide independent recommendations to the president.

I find it hard to believe that the top legal advisor to the president cannot recall what he said or did with respect to so many of the enormous policy and legal decisions that have flowed from the White House since Sept. 11 in particular. It is especially difficult to comprehend this sudden memory lapse, when the consequences of these decisions have had, and will continue to have, profound effects on world events for decades to come.

Judge Gonzales was asked whether he had chaired meetings in which he discussed with Justice Department attorneys such interrogation techniques as strapping detainees to boards and holding them under water as if to drown them. He testified that there were such meetings, and he did remember having had some "discussions" with Justice Department attorneys, but he cannot recall what he told them in those meetings. When Sen. Kennedy asked if he ever suggested to the Justice Department attorneys that they ought to "lean forward" to support more extreme uses of torture as reported by The Washington Post, he said, "I don't ever recall using the term." He stated that, while he might have attended such meetings, it was not his role but that of the Justice Department to determine which interrogation techniques were lawful. He said, "it was not my role to direct that we should use certain kinds of methods of receiving information from terrorists. That was a decision made by the operational agencies ... And we look to the Department of Justice to tell us what would, in fact, be within the law."

He said he could not recall what he said when he discussed with Justice Department attorneys the contents of the now-infamous "torture" memo of Aug. 1, 2002, the one which independent investigative reports have found contributed to detainee abuses first in Guantanamo and Afghanistan and, later, Iraq.

When asked whether he agreed with the now repudiated conclusions contained in that torture memo at the time of its creation on Aug. 1, 2002, Alberto Gonzales stated: "There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean ... I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department."

He added that, as counsel to the president, it was not his responsibility to approve opinions issued by the Department of Justice. He said, "I don't believe it is my responsibility, because it really would politicize the work of the career professionals at the Department of Justice."

One must wonder what the job of White House counsel entails, if it does not involve giving the president the benefit of one's thinking on legal issues.

Perhaps one reason Judge Gonzales says he does not remember what he said in those meetings is because, as soon as the torture memo was leaked to the press, he had to disavow it. Once it became clear that the White House believed — based on those meetings — that only the most egregious acts imaginable could be prohibited as torture, the memo received universal opprobrium. Thus, the administration had little choice but to repudiate it, and, in June 2004, Alberto Gonzales announced its withdrawal. He then directed the Justice Department to prepare new legal analysis on how to interpret prohibitions against torture under U.S. and international law.

Strangely, however, that new analysis was not available to the public for six more months. Finally, on Dec. 30, just one week prior to the Gonzales nomination hearing, a memorandum containing the administration's most recent take on the subject was issued by the Justice Department.

With the benefit of 20-20 hindsight and perhaps a keen desire to be confirmed as the next attorney general of the United States, Judge Gonzales told the committee on Jan. 6 that the analysis of the Aug. 1, 2002, memo no longer represents the official position of the Executive Branch of the United States.

If Judge Gonzales didn't see fit to question the Justice Department's official position on torture in 2002, what made the Administration change its mind in 2004? Was it a careful review of the legal issues? Or simply political back-peddling in light of the public knowledge of what its policies had brought about in Gitmo, Abu Ghraib, and elsewhere?

I note in passing that the "torture" memo was written in 2002 by then-Assistant Attorney General Jay Bybee, who is now a federal judge on the Ninth Circuit Court of Appeals. God help the Ninth Circuit. I would like the record to reflect that 18 other Senators and I voted to reject the nomination of Jay Bybee to be a federal judge, a decision I, for one, do not regret.

The Bybee memo drew universal condemnation and scorn for at least two of the legal opinions that were included in its text. First, it described torture as being prohibited under U.S. law in only very circumscribed circumstances. It defined torture so narrowly that horrific harm could be inflicted against another human being in the course of an interrogation overseas and not be prohibited. According to the memo, unless such acts resulted in organ failure, the impairment of a bodily function, or death, they could be considered legal. In fact, the first page of the memorandum states, "We conclude that the statute [against torture], taken as a whole, makes plain that it prohibits only extreme acts ... This confirms our view that the criminal statute penalizes only the most egregious conduct."

The second but equally shocking and erroneous legal conclusion reached in the so-called "torture" memorandum states, "We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A [- the relevant provision of U.S. law prohibiting torture -] may be barred because enforcement of the statute would represent an unconstitutional infringement of the president's authority to conduct war" as the commander in chief. This means the White House believed that a president can simply "override" the U.S. law prohibiting torture, just because he disagrees with it. He can ignore the law by proclaiming, in his own mind, that the law is unconstitutional. Not because a court of the United States has found the law to be unconstitutional, but because a war-time president decides he simply does not want to be bound by it.

What an astounding assertion! Think of it! A president placing himself above the law, in effect, crowning himself King.

This outrageously broad interpretation of executive authority is so antithetical to the carefully calibrated system of checks and balances conceived by the founding fathers, it seems inconceivable that it could be seriously contemplated by any so-called legal expert, much less attorneys of the U.S. Justice Department or the White House counsel.

Has this White House no appreciation for the struggle that this nation endured upon its creation? Can it really believe that a president can circumvent the will of the people and their legislature by adopting and disseminating a legal interpretation that would, in the end, protect from prosecution those who commit torture in violation of U.S. law?

Alexander Hamilton in Federalist No. 69 described in detail exactly how the American system can and must be distinguished from the British monarchy. He wrote: "There is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone, what the other can only do with the concurrence of a branch of the Legislature."

No one man, no president, not his White House counsel, nor all of the attorneys in the Office of the Legal Counsel in the Justice Department can, on their own, act in contravention of a law passed by Congress.

No president can nullify or countermand a U.S. law to shield from prosecution those who would commit, or attempt to commit, torture. But that was the result sought by the White House.

When asked by Sen. Durbin if he still believes that the president has the authority as commander in chief to ignore a law passed by Congress — to decide on his own whether it is unconstitutional or to simply refuse to comply with it — Judge Gonzales stated that yes, he believes it is theoretically possible for the Congress to pass a law that would be viewed as unconstitutional by a president, and, therefore be ignored.

And even though the torture memo was replaced by a new memorandum on Dec. 30, the replacement memorandum does not reject the earlier document's shockingly overly expansive interpretation of the president's commander in chief power. Instead, the new memo states that, because that portion of the discussion in the earlier memo was "unnecessary," it has been "eliminated" from the new analysis.

Particularly disturbing is the fact that, although the new analysis repudiates the earlier memo's conclusion that all but extreme acts of torture are permissible, Judge Gonzales could not tell us whether this repudiation of prior policy has been communicated to those who are today doing the interrogating.

This is important because there is language contained in the now-repudiated torture memo that was relied on in Guantanamo and parts of which were included word-for-word in the military's "Working Group Report on Detainee Interrogations in the Global War on Terrorism." This report, dated April 2003, has never been repudiated or amended, and may be relied upon by some interrogators in the field.

When asked whether those who are charged with conducting interrogations have been apprised of the administration's repudiation of sections of the Bybee memo and the administration's attendant change in policy, Judge Gonzales did not know the answer.

Judge Gonzales continues to deny responsibility for many of the policies and legal decisions made by this administration. But the Fay and Schlesinger reports corroborate the fact that policy memos on torture, ghost detainees and the Geneva Conventions, which Judge Gonzales either wrote, requested, authorized, endorsed, or implemented, appear to have contributed to detainee abuses in Afghanistan, Guantanamo Bay, and Iraq, including those that occurred at Abu Ghraib.

The International Committee of the Red Cross has told us that abuse of Iraqi detainees has been widespread; not simply the wrongdoing of a few, as the White House first told us. And the abuse occurred not only at Abu Ghraib. Last week, the Los Angeles Times reported that documents released last Monday by the Pentagon disclosed that prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded detainees at another location — a little-known palace in Baghdad that was converted into a prison. The documents suggest, for the first time, that numerous detainees were also abused at one of Saddam Hussein's former villas in eastern Baghdad. The article noted that, while previous cases of abuse of Iraqi prisoners had focused mainly on Abu Ghraib, allegations of abuse at this new location included that guards had sodomized a disabled man and killed his brother, then "tossed" his dying body into a cell, on top of his sister.

Judge Gonzales admits that he was physically present at discussions regarding whether acts of this nature constitute torture, but don't expect him to take responsibility for them.

Don't hold me accountable, he says. It wasn't I. And he doesn't just point fingers at the Justice Department. He spreads the blame around. While he admitted he'd made some mistakes, he attempted to further deflect responsibility for his actions by saying the "operational agencies" also had responsibility to make decisions on interrogation techniques — not him.

Here is exactly what he said:

I have a recollection that we had some discussions in my office, but let me be very clear with the Committee. It is not my job to decide which types of methods of obtaining information from terrorists would be the most effective. That job responsibility falls to folks within the agencies. It is also not my job to make the ultimate decision about whether or not those methods would, in fact, meet the requirements of the anti-torture statute. That would be the job for the Department of Justice ... I viewed it as their responsibility to make a decision as to whether or not a procedure or method would, in fact, be lawful.

One wishes that Judge Gonzales could have told us what his job was, rather than telling us only what it was not! Talk about passing the buck!

Well, at the end of the day, one can only wonder then, what legal advice, if any, he actually gave the president. Does Judge Gonzales have an opinion on the question of what constitutes torture? Does the president? Does he or does the president have an opinion on the related question of whether it is legal to "relocate" detainees to "facilitate" interrogations? Do they believe it is morally or constitutionally right? Do we know?

According to Art. II, Sec. 3 of the United States Constitution, as head of the executive branch, the president has a legal duty to take care that the laws be faithfully executed. The Constitution does not say that the president "should" or "may" undertake that responsibility: it clearly states that the president "shall take Care that the Laws be faithfully executed." He is duty-bound to undertake that responsibility under the Constitution of the United States. And the president and his counsel must be held accountable for not only failing to faithfully execute our laws, but for trying to undermine, contravene, and gut them.

With such a track record, how can we possibly trust this man to be the attorney general of the United States? What sort of judgment has he exhibited?

As I stated with respect to Dr. Rice, there needs to be accountability in our government. There needs to be accountability for the innumerable blunders, bad decisions, and warped policies that have led the United States to the position in which we now find ourselves: trapped in Iraq amid increased violence; disgraced by detainee abuses first in Guantanamo, then in Afghanistan, Iraq, and probably in locations we have yet to discover; shunned by our allies; and perceived by the world community, rightly, as careening down the wrong path.

I do not believe our nation can rely on the judgment of a public official with so little respect for the rule of law. We cannot rely on the judgment of someone with so little regard for our constitutional system of government. I simply cannot support the nomination of someone who, despite his assertions to the contrary, obviously contributed in large measure to the atrocious policy failures and the contrived and abominable legal decisions that have flowed from this White House over the past four years. For all of these reasons, I have no choice but to vote against the nomination of Alberto Gonzales to be the next attorney general of the United States.

© 2005 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/21170/

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Questions While Watching an Insipid Inaugural

By Elaine Cassel Fri., Jan. 21 2005 at 8:22 PM
Categories: Imported
  1. Was Laura Bush squinting because of the dazzling white of her cashmere suit that she appeared to be poured into, like a sausage?
  2. Speaking of sausages, what's up with Jeb Bush?  If Bill Parcels is Tuna, Jebbie is the Whale.
  3. How macabre was it to see poor dying, doddering Rehnquist administer the oath of office to GW?
  4. Why did Dennis Hastert administer the oath to Cheney And can't he read? I mean, he only flubbed his lines three times.
  5. What was Cheney's lesbian daughter doing holding the Bible? Was that some kind of in-your-face to the Christian right? 
  6. What was racist Trent Lott running the show?
  7. What's with the pathetic singers? That "Bless This House" woman from Texas with the fake red hair? A regular warbling wrangler, she was.
  8. And Denyce Graves? The only thing uglier than her coat was her untamed hair (maybe she and Jenna were vying for the most unkempt mop medal). And what was that awful song about? 
  9. Will George ever learn to speak his "s's" without hissing? Could someone give him an elocution lesson?
  10. Those twins. Could they get a fashion consultant or something? Fat Jenna in her pants and too-tight top. Barbara in her mismatched coat, dress, and belt. What a rag-tag team they are.
  11. Did Laura and George honestly think they were dancing? Standing stiffly and swaying side to sides for 30 seconds?
  12. And speaking of George and Laura, why were they so proud of being back at the White House by 10 pm?  Is that any way to treat their nearest and dearest who paid a quarter million dollars for tickets?
  13. How about that last prayer by the preacher from Texas? Did you like that curse on those who engage in "petty partisan politics"? Wouldn't be referring to Democrats, would he? Are they the "evil one" he prayed that "we" be "delivered" from?
  14. Is that tasteless, tepid show the best that $40 million can buy?
  15. Finally, did the world that Bush ordered to get on board the freedom train—or else--get a good glimpse of freedom? Missile launchers, jet fighters, swat teams, cops with assault weapons, dogs, barbed wire, barricades, surveillance cameras—that's what they have to look forward to?


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