Over the objections of their own legal experts, right-wing media continue to argue the alleged Boston bomber should be denied constitutional rights unlike the hundreds of terrorists before him who have been successfully tried and convicted.
Prominent right-wing media figures have advocated a wide range of unconstitutional treatment for Dzhokhar Tsarnaev, the 19-year-old U.S. citizen accused of complicity in the Boston marathon bombing and subsequent murder of a police officer. Echoing GOP politicians from Sen. Lindsay Graham (R-SC) to Rep. Michelle Bachman (R-MN), right-wing media have called for Tsarnaev to be denied the constitutional protections regularly given to domestic or foreign terrorists in this country, both before and after the September 11, 2001, attacks.
Fox News hosts have suggested using torture on Tsarnaev because not all American citizens are "worthy of the constitutional rights that we have." The Wall Street Journal joined the dangerous clamor (fueled by Graham and Bachman) to indefinitely detain Tsarnaev in military custody as an "enemy combatant." Conservative pundit Ann Coulter told Fox's Sean Hannity she wanted authorities to "shoot up the boat" when they found Tsarnaev unarmed and "get him an automatic death penalty there."
When the Department of Justice initiated criminal proceedings against Tsarnaev, right-wing media turned their ire upon Attorney General Eric Holder and President Barack Obama for not preventing the federal judge from following the law. National Review Online's John Yoo accused the president of the "elevation of ideology over national security." Fox host Megyn Kelly continues to pretend "the public safety exception to Miranda lasts only 48 hours." A Washington Times columnist called for President Obama's impeachment because he is "unwilling" to protect America.
After Chief Justice John Roberts wrote the opinion upholding health care reform, the right-wing media have attacked his conservative credentials. Despite experts' statements that the opinion might have cleared the way for more rulings restricting federal power and progressive legislation, media conservatives are using this as a pretext to demand even more conservative judicial nominees. There is evidence their pressure is having an effect.
A recent New York Times article on the Obama Administration's response to Republican congressional obstructionism makes extensive use of the terms "unilateral and "unilateralism." The article suggests hypocrisy on the part of President Obama, stating that "[a]s a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress." But it offers only a single example of an action based on the president's constitutional authority to act without congressional authorization, the use of the recess appointment power.
Instead, the article cites numerous instances of a very different phenomenon: Presidential action based on powers delegated by Congress. Time and again, the administration has asked Congress for legislation to address pressing problems, been faced with obstruction, and fallen back on authority it believes was already granted by previous legislation. This approach is different in kind from the Bush administration's repeated assertion of a right to ignore or act contrary to statutes, including assertions made in the former Bush administration official John Yoo's infamous "torture memos."
The article summarizes the administration's approach as follows:
But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts "We Can't Wait," a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies -- on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: "If Congress refuses to act, I've said that I'll continue to do everything in my power to act without them."
The article acknowledges that the Obama administration has not claimed presidential power to override statutes, as the Bush administration did:
"Obama's not saying he has the right to defy a Congressional statute," said Richard H. Pildes, a New York University law professor. "But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago."
Thus, according to Pildes, the administration has not altered its view of presidential power, but merely shifted political tactics from emphasizing bipartisan cooperation to placing a premium on taking action.
Georgetown University law professor and former Obama administration Office of Legal Counsel official Marty Lederman argues that the article's central failing is that it does not make clear the extent to which the administration is acting under authority it argues it has under existing legislation.
From Lederman's blog post:
John Yoo, author of several infamous "torture memos" during the Bush administration, appeared on Fox News' The O'Reilly Factor to criticize the Obama administration for giving a civilian trial to Ahmed Ghailani, the man accused of participating in the bombing of U.S. embassies in Kenya. Yoo went so far as to say that he was worried that Obama conducted the civilian trials to "win a popularity contest" with other nations.
Yoo and guest-host Laura Ingraham, however, were silent about the fact that Ghailani was subjected to interrogation techniques of the type approved by Yoo and the use of those interrogation techniques made it much more difficult to win convictions in the case on all counts. (Ghailani was convicted on one count and faces decades in prison as a result.)
The judge presiding over Ghailani's trial excluded the testimony of Hussein Abebe, the person who allegedly gave Ghailani the explosives that were used in the embassy bombings. He excluded the witness because his name was obtained via "extremely harsh interrogation techniques" (and possibly torture). From the decision:
Ghailani was transferred to CIA custody in 2004. He was imprisoned at a secret site and subjected to extremely harsh interrogation methods as part of the CIA's Rendition, Detention and Interrogation Program. 24 Ghailani here contends mat his treatment constituted torture. For present purposes, it suffices to say that the government does not dispute, for purposes of this motion, that all of the statements made by Ghailani while in CIA custody were coerced and obtained in violation of his Fifth and Sixth Amendment rights.
From the November 18 edition of Fox News' The O'Reilly Factor:
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In a New York Times op-ed, John Yoo -- author of the infamous torture memos -- attacked Elena Kagan for agreeing with the Supreme Court majority rather than Yoo himself on the limits of presidential power. Yoo, a law professor and Philadelphia Inquirer columnist, previously urged a filibuster of anyone Obama nominated.
By attacking Kagan for not having the same extreme views as he does on executive power, Yoo does at least provide a rejoinder to those who forward the myth that Kagan will act as a rubber stamp on war on terror policies.
In his Times op-ed Yoo attacks Kagan for stating views of presidential power that are "in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch's powers are quite limited." Yoo goes on to attack Kagan for not adopting his own and Justice Scalia's views that congressional attempts to limit the president's control over the executive branch are unconstitutional:
In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."
Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.
This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)
It must be noted that the legal analysis of the president's inherent powers Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public. Additionally, the Justice Department reportedly specifically repudiated Yoo's claim that the Fourth Amendment had "no application to domestic military operations."
Furthermore, at least one of the Bush administration's claims of executive authority went too far even for Scalia. In Hamdi v. Rumsfeld, a case in which a majority of justices rejected the Bush administration's power to hold U.S. citizens as enemy combatants on U.S. soil without access to civilian courts, Scalia went even further than the majority. In a dissenting opinion joined by Justice John Paul Stevens, Scalia argued that Congress had not authorized the suspension of habeas corpus and therefore the executive branch did not have the power to hold citizens like Hamdi. (Congress has since authorized detentions in the Military Commissions Act.)
University of California law professor John Yoo -- who is most famous for drafting the so-called "torture memos" -- used his May 2 Philadelphia Inquirer column to urge a filibuster of Elena Kagan, Merrick Garland, or Diane Wood should President Obama nominate one of them to be a Supreme Court justice. What does Yoo think is so radical about these three people, all of whom are widely reported to be on Obama's short list, that a filibuster is in order? Apparently not much. Yoo writes that a filibuster "would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies."
From Yoo's column, headlined "Supreme Court sanity calls for filibusters":
Should senators filibuster Elena Kagan, Merrick Garland, or Diane Wood for the Supreme Court? Yes, if there is any hope of fixing the broken appointment process and restoring limited constitutional government.
The three are the most-often-mentioned nominees for the seat of Justice John Paul Stevens, 90, who last month announced his retirement after 35 years on the high court. A filibuster to prevent a confirmation vote on his replacement would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies.
Over the years, Senate Democrats have destroyed the confirmation process by turning it away from qualifications to a guessing game over how court nominees might vote on hot-button issues such as abortion, the death penalty, and racial quotas. They began the degradation of the advise and consent role with the 1987 rejection of Judge Robert Bork, who would have been one of the most qualified justices in the history of the Supreme Court, and the outrageous effort in 1991 to smear Clarence Thomas (for whom I served as a law clerk). They continued the descent with the filibuster of a slate of excellent picks for the lower courts by George W. Bush, and they reached a new low with their votes against John G. Roberts Jr. and an attempted filibuster against Samuel A. Alito Jr.
The lack of sober analysis of these nominees' records is not surprising. Conservative media figures and Republicans have already made it clear that they will oppose whoever Obama nominates. And recall that the legal analysis Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public.
During a Fox News appearance, John Yoo falsely claimed that handling terror suspects in the criminal justice system means "we're not going to be able to get intelligence from the people we capture," ignoring recent examples of such suspects cooperating with law enforcement officials. Yoo also falsely equated the Bush administration's waterboarding of detainees with the training U.S. soldiers undergo.
In a May 2004 op-ed, John Yoo made assertions that were later revealed to be highly misleading or at odds with legal memos he had written during the Bush administration.
In his May 10 column, reportedly the first in which he was identified as an Inquirer columnist, John Yoo denounced President Obama for citing empathy as a qualification he will seek in a Supreme Court nominee -- after Yoo lavished praise on Justice Clarence Thomas for displaying that very quality.