Thursday, June 12, 2008

Boumediene v. Bush Ruling Will Cost Lives

Project 21's Kevin Martin and four members of the U.S. Supreme Court fear the Supreme Court's ruling in Boumediene v. Bush (pdf) -- the Guantanamo Bay/enemy combatant decision -- will cost lives:

Supreme Court Gitmo Ruling Called "Chilling"; Will Cost American Lives

For Release: June 12, 2008
Contact: David Almasi at (202) 543-4110 x11 or dalmasi@nationalcenter.org

Washington, D.C. - Responding to today's U.S. Supreme Court ruling in Boumediene v. Bush that allows suspected terrorists to challenge their incarceration, Project 21 member Kevin Martin is criticizing the Court, saying this decision puts national security at risk and sends a confusing signal to the military.

"As a Navy veteran who supported and defended our Constitution at home and abroad, today's Supreme Court ruling benefiting suspected terrorists is deeply disappointing," said Martin. "To grant suspected terrorists the same rights as those fighting to protect our nation is wrong. I consider this one of the most chilling legal rulings in my lifetime. Giving alleged foreign combatants the same rights as any American provides potential ammunition to those with political agendas running counter to the commander-in-chief. Our nation's enemies will now have the ability to gum up our federal courts with baseless legal challenges and further hinder the pursuit of justice."

In the razor-thin 5-4 ruling, the Supreme Court decision allows suspected terrorists such as those currently held at Guantanamo Bay, Cuba the right to challenge their incarceration in federal courts. It overturns a law passed in 2006 that limited judicial jurisdiction and affects 270 suspected terrorists currently being held by the U.S. military - including 14 suspects al Qaeda members.

Writing in dissent, and joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Chief Justice John Roberts wrote that the 2006 law struck down today was "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation... One cannot help but think... think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

In another scathing dissent, joined by Chief Justice Roberts and Justices Thomas and Alito, Justice Antonin Scalia wrote that the majority decision "warps the Constitution" and that "[our] nation will live to regret what the Court has done today." Scalia further warned the ruling "will almost certainly cause more Americans to be killed... that consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today." Scalia also wrote a practical affect of the decision will likely be harm to enemy combatants, as the decision is likely to result in enemy combatants being turned over to other nations by the United States following capture.

Martin added: "This sends a confounding message to our men and women in uniform, within our intelligence community and to our allies. Their hard-fought efforts to capture terrorist suspects maybe for naught because they could simply be released back on the battlefield on a legal technicality."

For more information, I recommend reading the decision.
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Labels: Constitutional Law, Courts, Defense, Foreign Policy, Government Power, Human Rights, Project 21

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Monday, May 26, 2008

Photo ID: Bad for Polls, but Good for Premieres

From David Almasi:

Last month, the U.S. Supreme Court upheld an Indiana election law requiring that people show valid photo ID at a polling place before they receive a ballot. The decision was made over the outcry of critics who claim it will restrict access to the polls - particularly for the poor, elderly and minorities.

This Sunday, HBO debuted its new movie "Recount," a star-studded drama about the 2000 post-election recount in Florida. The decision to certify the election in George W. Bush's favor was made over the outcry of critics who claimed the voting process was too confusing and irregular -- particularly for the poor, elderly and minorities.

Don't think a Hollywood film about it won't echo these beliefs. According to a review of "Recount" in Entertainment Weekly: "Speaking of Democrats, 'Recount' may not be downright blue, but it's not as purply as it wants to appear. Despite its 'equal time' approach, 'Recount' is an underdog story, and thus a Democrat story." On the Politico website, Laura Dern, who plays then-Florida Secretary of State Katherine Harris, says of the story: "As much as I consider myself a conspiracy theorist, it was much worse than I expected."

I am a subscriber to Entertainment Weekly and sometimes receive its online giveaways. I won a pair of tickets to go to a premiere of "Recount" at a movie theater in downtown Washington. I'm busy, but I wanted to be able to give the tickets to a co-worker. No can do. In order to use the tickets, according to the personalized e-mail I received, "please have photo IDs for you and your guest available for inspection."

So let me get this straight: I'm not supposed to be required to show a photo ID before doing something as important as voting, but I do need one to see a movie? A movie, by the way, that at that time was scheduled to be on television in just four days.

I'm figuring the people behind this movie were outraged when they heard about the Supreme Court's decision.

This is just one of the many things I’ve dealt with lately that required photo ID. I needed photo ID last week to donate blood. I needed a photo ID to get a free burrito from Moe's on my birthday. And I need to show a photo ID just to get past the lobby in my wife's office building. Shouldn't one also be required for voting?

But, based on prevailing liberal logic, the photo ID requirement at these places and at the "Recount" premiere is wrong -- particularly for the poor, elderly and minorities.

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Labels: Courts, Media

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Saturday, May 10, 2008

A Novel Approach to Requesting a Pardon for Ramos and Compean

David Almasi shares an idea for a novel approach to a pardon request to President Bush for Ignacio Ramos and Jose Alonso Compean:

"Mr. President, I am honored and grateful that you have invited me to your ranch on the wedding day of your daughter. And may their first child be a masculine child."

Project 21 Chairman Mychal Massie has been a long-standing advocate of a presidential pardon or commuting of the prison sentences of U.S. Customs and Border Patrol agents Ignacio Ramos and Jose Alonso Compean. In fact, Project 21 has successfully enlisted the support of black churches across America for a special "National Day of Prayer for Jailed Border Agents and All Law Enforcement" on Sunday, May 11. More information on the case and the need for a pardon can be found in Mychal's Washington Times column, is available here.

Saturday is Jenna Bush's wedding. Since previous pleas have for clemency have fallen on deaf ears, perhaps a page can be taken from Mario Puzo's The Godfather. Someone who's been invited to the Crawford, Texas nuptials needs to put the question of freedom for Ramos and Compean to President Bush tomorrow. Since, according to Puzo's story, "no Sicilian can refuse a request on his daughter's wedding day," maybe something similar can be arranged with the President.

I know he's not Sicilian, but it's worth a try. Patriotism and logic have failed thus far.

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Labels: Courts, Immigration, Project 21

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Tuesday, March 18, 2008

On Eve of D.C. Gun Ban Supreme Court Case, Black Activist Says No Rights are Secure Unless All of Them Are

The U.S. Supreme Court will hear arguments today on the constitutionality of the nearly 32-year-old District of Columbia handgun ban. Project 21 Fellow Deneen Borelli, a gun owner, says the court must respect all the protections in the U.S. Constitution, or none of them are truly safe:

Black Activist Asks: If Courts Can Gut Second Amendment, How Can We Assume 13th Amendment Ban on Slavery is Safe?

For Release: March 18, 2008
Contact: David Almasi at (202) 543-4110 x11 or project21@nationalcenter.org

As the U.S. Supreme Court considers its first major case involving the definition of the 2nd Amendment's protection of gun rights in almost 70 years, black activists with the Project 21 leadership network assert that government should not be allowed to pick and choose what constitutional protections are honored and enforced.

"As a black American, I would be horrified to hear a state or local government enacted legislation or regulation that gutted the 13th Amendment's prohibit on slavery or the 15th Amendment's guarantee that all races could vote. Why aren't more people outraged when the 2nd Amendment's guarantee that individuals can protect themselves is infringed?" asks Project 21 fellow Deneen Borelli. "Besides violating the 2nd Amendment, this case involving the District of Columbia's gun ban is a violation of the fundamental rationale of law as well as immorally denying citizens the right to protect themselves."

In the case of District of Columbia v. Heller, to be heard at 10:00 am Eastern on March 18, the justices will consider arguments about a ruling by the U.S. Court of Appeals for the D.C. Circuit last spring that struck down the 1976 law that banned most gun ownership in the nation's capital. This particular case is important from other recent gun rights cases heard by the Court because the nature of the case touches the core 2nd Amendment protection of an individual's right to own a firearm.

"In Washington, criminals know that an unarmed citizen is easy prey. Right now, the criminals are winning because the city's gun ban is effectively protecting the plunderer and punishing the property owner," added Project 21's Borelli. "The lower court verdict to restore power to the people to legally possess a suitable firearm will make criminals think twice about their actions, and it is something the Supreme Court should affirm."

Borelli's column on the case is available at http://www.nationalcenter.org/P21NVBorelliGuns90507.html

Project 21, a nonprofit and nonpartisan organization, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 543-4110 x11 or project21@nationalcenter.org, or visit Project 21's website at http://www.project21.org/P21Index.html.

- 30 -

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Labels: Constitutional Law, Courts, Government Power, Guns, Project 21, Social Welfare

Posted by Amy Ridenour at 12:22 AMEmail this Social bookmark this

Friday, July 27, 2007

Another Neo-Know-Nothing?

When it comes to the Law of the Sea Treaty, "neo-know-nothings" can be found in some pretty august positions.

Here's part of what Heritage Foundation President Ed Feulner had to say about the Law of the Sea Treaty in a column two years ago:

in Washington, a bad idea never goes away -- it just gets tabled until everyone forgets why it was such a bad idea.

The facts are simple, and they are the same today as they were back in 1982 when President Reagan first rejected the Law of the Sea treaty and Donald Rumsfeld (then a special presidential envoy on the treaty) told the world why: It does not serve our national security interests or our economic interests, and we should make sure it isn’t ratified.

Admittedly, Secretary Rice isn’t the treaty’s only supporter. Last year, it passed the Senate Foreign Relations committee. Even some members of the U.S. military are on board. As Michael Mullen, then vice chief of naval operations, told a House committee, “we must be able to take maximum advantage of the established and widely accepted navigational rights the Law of the Sea Convention codifies to get us to the fight rapidly.”

But, in fact, the Navy stands to gain little from the treaty. As Admiral Mullen also testified, the U.S. already is complying with large parts of the agreement. “If the U.S. becomes a party to the Law of the Sea Convention, we would continue to operate as we have since 1983,” he said. “The Convention’s rules in this regard do not change the rules the Navy has operated under for over 40 years under the predecessor 1958 treaties to which the United States is a party, governing the territorial sea and high seas.”

In other words: Treaty or no treaty, we’ll keep doing what we’re doing.

But while there’s not much for us to gain, there’s plenty to lose.

In October 2003, Defense Department official Mark Esper told the Senate that other nations could use Law of the Sea treaty to curtail American military operations, even though these maneuvers are supposed to be exempt. China, for example, likely would waste no time attempting to use the treaty to stop U.S. naval war games.

It’s not merely the military that’s at risk, though. If ratified, the treaty would create virtual governments that would be outside of American control but would exercise power over American interests. For example, Section 4 of the treaty would establish the International Sea-Bed Authority to exercise executive and judicial control over almost all of the world’s oceans and seabeds -- nearly 70 percent of the planet. Its new authority would have the power to tax American interests engaged in a variety of maritime endeavors. Only U.S. lawmakers ought to be able to decide how -- and how much -- to tax Americans.

If the treaty went into effect, the result would resemble the United Nations: The U.S. would foot the bill for about 25 percent of the organizations the treaty would establish. But, as at the U.N., blocks of non-democratic nations could limit our actions easily.

Let’s be frank: These international bureaucracies don’t work. The United Nations is already dealing with a sex scandal in the Congo, genocide in Sudan and the Oil-for-Food fiasco in Iraq. Why would we want to create more unaccountable international bureaucracies and place them in charge of our oceans?

As former Secretary of State George Shultz noted last year, nations create international organizations to serve their common interests, not to govern them. The current system works well and is in our national interest. That’s why it’s time to sink the U.N. Convention on the Law of the Sea, once and for all.

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Labels: Congress, Courts, Defense, United Nations

Posted by Amy Ridenour at 5:17 PMEmail this Social bookmark this

Thursday, July 26, 2007

Neo-Know-Nothings? Law of the Sea Supporter Casts Civility Adrift

A story (paid subscription required) in the National Law Journal this week featured husband David as the lone supporter of U.S. sovereignty against quotes from three supporters of ratification of a treaty many Reaganite conservatives believe would hurt our national defense.

The National Law Journal article is nothing if not objective, beginning with the title "Sea Treaty Cast Adrift by the U.S.; Plenty of Support, but No Approval."

By the very definition of "plenty," there isn't "plenty of support" for the Law of the Sea treaty, because there hasn't been enough to get it approved. "Plenty" implies a surfeit. But more to the point, if there have been polls of public attitudes of the Law of the Sea Treaty, and I know of none, they certainly weren't referenced in the article.

The text commences in an equally fair and balanced manner:

The Law of the Sea Treaty, which established a sweeping legal regime for activities on and under the world's oceans, has been a fixture of international law for nearly three decades. But why, despite broad political, military, industry and environmental support in the United States, has the Senate never ratified it?

Some international law experts say it's unlikely any other treaty has been so widely supported and yet failed to come to a vote in the Senate for so long a period of time.

Today, 153 nation states have acceded to the treaty, including Russia, China, every European Union nation and virtually all U.S. allies in the North Atlantic Treaty Organization and the Organization for Economic Co-operation and Development.

President Bush recently urged the Senate to dust it off and push it through by the end of this congressional session.

Is the small, but tenacious, opposition rooted in traditional conservative mistrust of international legal bodies, such as the International Court of Justice and the International Criminal Court?

"I think that can be part of it," said treaty opponent David Ridenour, vice president of the National Center for Public Policy Research. "Certainly there are provisions of the treaty that give people reasons to be distrustful."

But that distrust is based on misinterpretations of treaty specifics and poor lawyering, insisted longtime treaty advocate John Norton Moore of the University of Virginia School of Law, director of its Center for National Security and Oceans Law and Policy...

Mr. Moore (a Law of the Sea Treaty negotiator) goes on to refer to treaty opponents as a "a neo-know-nothing movement," evidently referring to the mid-19th century Know-Nothing Party.

(The National Law Journal may have missed the reference, as it did not capitalize the party's name -- possibly its writer and/or editors thought Moore was describing critics as a movement of newly-minted idiots.)

The Know-Nothings, for those of you who have limited your knowledge of history to what they teach in schools and universities, was an anti-immigrant and anti-Catholic political party during the pre-Civil War era.

The slur is reminiscent of comments from the pro-amnesty lobby, which called law-abiding citizens who want to build a wall to protect our border before discussing amnesty for illegal aliens xenophobic immigrant bashers, among other epithets. But heck, even Jimmy Carter's amnesty of Vietnam War draft-dodgers didn't take place until after the war was over.

Peace first; then forgive.

To be fair, Mr. Moore also called some treaty opponents "fine people." If I actually were married to an anti-immigrant Catholic basher, it would be a relief indeed to know he is a fine one. And at the risk of sounding like a newly-mined idiot myself, based on his picture on the University of Virginia website, Mr. Moore looks friendly -- though not chubby -- enough to play Santa Claus. Maybe he didn't really mean it.

I'm posting a bit more of the article below, but you'll have to visit (paid subscription required) the National Law Journal website to see the whole thing:

...The treaty gives states the option of choosing among ITLOS, the International Court of Justice or arbitral tribunals to settle their disputes. The United States is on record as rejecting the two courts and as choosing arbitration once it is a party to the treaty.

States are the main parties before the court or the arbitral tribunals, unless a state authorizes a private party, for example an oil company whose tanker has been seized by a foreign state, to proceed on its own behalf. Private parties have direct access to dispute resolution only in the deep sea-bed mining portion of the treaty. Mining companies sought their own right to sue and arbitrate, which was considered radical at the time, according to Oxman, but now is quite common, particularly under investment treaties.

Despite the United States' election of arbitration, Ridenour and other treaty opponents, such as Jeremy Rabkin of George Mason University School of Law, argue the United States could end up before the court when provisional measures -- similar to temporary injunctions -- are sought by a complaining state. The treaty provides that the court would automatically adjudicate such disputes when states cannot reach agreement on the method of adjudication or arbitration "within two weeks from the date of the request for provisional measures."

"You can imagine many circumstances in which the U.S. would disagree with Syria or Iran and where neither side agrees to arbitrators," said Ridenour. "The tribunal is not packed with a lot of U.S. supporters. One of the problems with these international tribunals is often you have judges from countries that do not have a long tradition of representative democracy."

But that is the "extreme setting" that treaty opponents magnify into a major, but baseless, problem, Moore said.

"All of the general dispute mechanisms are set up specifically for arbitration, like the normal commercial arbitration favored by American industry around the world," he said. At the end of the day, if parties can't agree on the arbitration process, he and others said, it is not unusual to have an appointing authority step in. And, if the United States were a treaty member, said Moore, it could have a judge on ITLOS and be an influential voice in the development of ocean laws.

Opponents also say treaty provisions on protecting the marine environment could become a "backdoor for environmental lawsuits" brought in U.S. courts on issues such as global warming. But supporters counter that U.S. courts are familiar with interpreting treaty obligations and the government wants this treaty because it offers stable rules of law and avenues for stopping environmental damage...

David's concerns about the Treaty, though it doesn't cover all of them, can be found here.
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Labels: Congress, Courts, Defense, United Nations

Posted by Amy Ridenour at 12:16 AMEmail this Social bookmark this

Sunday, July 22, 2007

Law of the Sea Treaty Unconstitutional?

Julian Ku, writing on the Opinion Juris blog, says Article 39 of Annex VI of the Law of the Sea Treaty may be unconstitutional:

I believe this provision, Art. 39 of Annex VI, does raise a real potential constitutional issue. This provision refers to the effect of decisions of the Seabed Disputes Chamber, a portion of the International Tribunal for the Law of the Sea authorized to settled disputes over seabed rights...

Here is the provision in its entirety:

Article 39 Enforcement of decisions of the Chamber

The decisions of the Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought.

As I argued at length here, this provision appears to require U.S. courts to give more than "full faith and credit" to judgments of this international chamber. Rather, it requires a U.S. court to treat such chamber decisions as equivalent to those of the U.S. Supreme Court. As far as I know, no prior treaty has ever committed the U.S. in quite this emphatic way. And I do think this provision raises real and serious U.S. constitutional questions about the excessive delegation of judicial power under Article III...

...[The State Department's] Their solution is to request the Senate attach a declaration to its advise and consent papers declaring this provision is "non-self executing." This means that Congress would have to act to subsequently pass legislation giving effect to this provision.

But even this solution is not free of problems. First of all, UNCLOS art. 309 appears to prohibit any reservations and exceptions, which might be read to nullify any non-self execution declaration. Second of all, even if Congress passed subsequent legislation, this would help (but not completely resolve) the constitutional question of whether Congress can require federal and state courts (and maybe the U.S. Supreme Court) to treat an international tribunal judgment as binding precedent...

Some commenters to his post disagree.

The entire conversation is here.
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Labels: Courts, United Nations

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