Archive: September 2006

The Ball is Now in the Supremes' Court

Now, maybe as early as next week, come the lawsuits challenging the constitutionality of the just-enacted detainee legislation. It is likely to be challenged on many different fronts and its enforcement perhaps even will be stayed pending that judicial review. And, ultimately, the whole shebang could wind up on the steps of the United States Supreme Court. Twice before, remember, in 2004 and 2006, the High Court has rejected the Bush Administration's terror detainee arguments. I wonder what the Justices are thinking this morning as they read and hear and see coverage of the passage of the new anti-terror law. I wonder if some of them see it, as many others do, as an affront to their own authority to determine and protect the rights of individuals. I wonder if some of them already are thinking of ways in which to discount Congress' effort to take away from all future...

By Andrew Cohen | September 29, 2006; 11:30 AM ET | Comments (26)

After Err Inhuman, This Vote Supine

So now a thoroughly and unabashedly uninformed Congress has given its seal of approval to the White House's terror detainee plan with the passage of a federal law that begins to harden into legal doctrine most of what President Bush has sought all along in the legal war on terrorism. The so-called GOP "compromise" that was much ballyhooed last week turns out to be a fraud. So was all the talk about the legislators taking their time this time to understand the complex issues involved and to give us a long-term solution to this problem. They gave us a "solution" all right. It's just the wrong solution. The new law means there will be a limited-- much, much more limited-- role for the courts so that both the White House and Congress can better avoid those embarrassing Supreme Court reversals that have become so common in this legal war on...

By Andrew Cohen | September 29, 2006; 7:00 AM ET | Comments (68)

This Time, Congress Has No Excuse

Of all the stupid, lazy, short-sighted, hasty, ill-conceived, partisan-inspired, damage-inflicting, dangerous and offensive things this Congress has done (or not done) in its past few recent miserable terms, the looming passage of the terror detainee bill takes the cake. At least when Congress voted to authorize the Iraq War legislators can point to the fact that they were deceived by Administration officials. But what's Congress' excuse now for agreeing to sign off on a law that would give the executive branch even more unfettered power over the rest of us than it already has? It just keeps getting worse. This morning, esteemed Yale Law professor Bruce Ackerman published this fine essay in the Los Angeles Times. His lead? "Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which...

By Andrew Cohen | September 28, 2006; 2:00 PM ET | Comments (104)

The Detainee Bill Now Gets Even Worse

Fascinating piece this morning by Farah Stockman of the Boston Globe entitled "Legal residents' rights curbed in detainee bill." Her lead? "A last-minute change to a bill currently before Congress on the rights of prisoners at Guantanamo Bay could have sweeping implications inside the United States: It would strip green-card holders and other legal residents of the right to challenge their detention in court if they are accused of being 'enemy combatants.' Stockman continues: "An earlier draft of the bill sparked criticism because it removed the rights of Guantanamo Bay detainees to challenge their detentions in federal court. But changes made over the weekend during negotiations between the White House and key Republicans in Congress go even further, making it legal for noncitizens inside the United States to be detained indefinitely, without access to the court system, until the 'war on terror' is over. It is unclear who initiated the...

By Andrew Cohen | September 28, 2006; 11:00 AM ET | Email a Comment

The Antidote for the Anti-Judges

Part of the reason that so many people are angry at judges these days is that so many people are completely uninformed about what judges do. Such ignorance breeds, as it always does, suspicion and fear. Part of the reason for this lack of knowledge about how often judges do well (and do good) is the judiciary itself, which has in the main opposed most attempts to introduce cameras into courtrooms so that all of us can see what goes on in there. However, in 2006, forty years after the Sam Sheppard re-trial, there is no longer any good reason to keep trials off television. You know it. I know it. And in the bottom of his or her robed heart every judge knows it too. Which brings us to Connecticut Supreme Court Senior Associate Justice David Borden. Today, Justice Borden is set to announce whether he will allow cameras...

By Andrew Cohen | September 28, 2006; 7:00 AM ET | Email a Comment

Sandy Speaks-- But No One Listens

"Judges who are afraid -- whether they fear for their jobs or fear for their lives -- cannot adequately fulfill the considerable responsibilities that the position demands," former Supreme Court Justice Sandra Day O'Connor wrote today in an op-ed piece in the Wall Street Journal. "In these challenging and difficult times, we must recommit ourselves to maintaining the independent judiciary that the Framers sought to establish." Do yourself a favor and take the time to read O'Connor piece (even if it means you do not have the time to read the rest of this post). Madam Justice is talking, loudly and often, about the concerted effort by members of her own Republican Party to denigrate judges and to diminish the independence and authority of the judiciary. She sees the harm it already has caused among her former colleagues and the enormous potential it has to cause even more damage in...

By Andrew Cohen | September 27, 2006; 2:00 PM ET | Comments (8)

Lethal Injection: Not Fit for a Dog?

The first day of the landmark hearing about the constitutionality of lethal injection procedures in California-- the methods and medicines by which the state executes its condemned prisoners-- was as fascinating as I had figured it would be when I wrote about it yesterday. The San Jose Mercury News in its story today pretty much led with comments made by U.S. District Judge Jeremy Fogel, who told the parties Tuesday in federal court in San Jose that: "It's inaccurate to say an execution has to be painless... The question is whether the degree of pain is so severe that it raises constitutional issues under the Eighth Amendment.'' The San Francisco Chronicle led with this: "California's method of lethal injection isn't humane enough to use on a dog, medical witnesses testified Tuesday on behalf of a condemned murderer from Stockton who is challenging the constitutionality of the state's execution procedures." The...

By Andrew Cohen | September 27, 2006; 11:30 AM ET | Email a Comment

Don't Blame Andrew Fastow

I don't have a huge problem with the fact that former Enron CFO Andrew Fastow got only a six-year federal prison sentence yesterday for his Enron-related crimes. The deal that the feds made years ago with Fastow-- the deal that in the end netted the convictions of (the now late) Kenneth Lay and Jeffrey Skilling-- limited his prison time to ten years and when you include the two years of probation Fastow receives at the end of his six years what he got is pretty much what he, and his lawyers, and the prosecutors should have expected. But I bet you that Bernard Ebbers has a problem with Fastow's sentence. On the very day that Handy Andy learned his fate in Houston, Ebbers, the former Worldcom executive, was entering a federal prison in Louisiana to serve a 25-year sentence for securities fraud, conspiracy and filing false documents. Did Ebbers commit...

By Andrew Cohen | September 27, 2006; 7:00 AM ET | Comments (1)

Little Justice In New York Justice Courts

The New York Times is in the middle of a classic series about a certain kind of judicial post that ought to send a shudder down the spine of every million-dollar lawyer and learned jurist in the Empire State. Here is the first part of the series entitled "Broken Bench" by William Glaberson and Jo Craven McGinty. The gist of Part I, naturally enough, comes in its lead paragraphs: "Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge's bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings. Nearly three-quarters of the judges are not lawyers, and many -- truck drivers, sewer workers or laborers -- have scant grasp of the most basic legal principles. Some never got through high school, and at least one went...

By Andrew Cohen | September 26, 2006; 3:00 PM ET | Comments (1)

Taking the Time to Get it Right on Lethal Injections

A showdown begins today in federal court in San Jose, California, over the state's use of lethal injections to execute condemned prisoners. The Los Angeles Times this morning has a good piece about how U.S. District Judge Jeremy Fogel plans to devote four full days in court to investigate whether California's system of lethal injections-- the procedures and medicines used-- violates the prisoners' rights to be free from "cruel and unusual" punishment. The prisoner in this case is a man named Michael Morales, who was convicted and sentenced to death in 1981 for the murder of Terri Lynn Winchell. Morales' attorneys, the Times reports, plan to "probe everything about the state's lethal injection procedures -- the nature and amounts of the drugs used, the lighting in the room where people monitor the inmate's death and the background of the people on the execution team." California officials, the Times says, plan...

By Andrew Cohen | September 26, 2006; 11:30 AM ET | Email a Comment

Why Arar Matters In the Terror Detainee Debate

In large part, the fate of the pending terror detainee "deal" between Congress and the White House depends upon trust. The Congress (and therefore the rest of us) will have to take the Bush Administration's word for it when its officials tell us that they are not actually "torturing" terror suspects but rather employing those "alternate procedures" that are acceptable, apparently, only because they are impossibly vague (ignorance, as always, being a virtue on Capitol Hill). But how can Congress trust the White House when every day seems to bring a story about how the Bush Administration in the past has deceived judges, politicians, and even upstanding members of the executive branch? Monday's "story" came from the New York Times, which reported that US officials knew from their Canadian counterpartrs that Maher Arar was not a member of Al Qaeda when they labeled him a terrorist and had him shipped...

By Andrew Cohen | September 26, 2006; 7:00 AM ET | Email a Comment

How Many... If Any... Died in Vain?

The magic number is 2,973. So much has been made over the past few days about the fact that military deaths since 9/11 have now surpassed the death toll that awful day in Manhattan, at the Pentagon, and on Flight 93. Calvin Woodward's piece for the Associated Press, which drove a lot of this coverage this past weekend, put it cryptically: "Not for the first time, war started to answer death has resulted in at least as much death for the country first attacked, quite apart from the higher numbers of enemy and civilians also killed. Historians say this grim accounting is not how the success or failure of warfare is measured, and that the reasons for conflict are broader than what served as the spark." The historians are right. It is mostly inapt to compare the civilian deaths on 9/11 with the military deaths since and certainly unfair to...

By Andrew Cohen | September 25, 2006; 4:00 PM ET | Email a Comment

Saying No to the Gitmo Deal-- For Now

As faithful readers know, I've been a big proponent of a deal between the White House and the Congress that would put back on track the processing of terror detainees out of Guantanamo Bay, Cuba. A deal. But not any deal. And the deal that Republican Senators and the White House came up with last week simply isn't good enough or, more precisely, doesn't adequately solve the many problems that have surfaced since President Bush authorized our forces to take off the gloves when it comes to handling detainees. I am all about compromise. But the compromise has to be a meaningful one and not one that simply delays for another day the resolution of the conflict. For example, there ought to be more discussion of the provision in the deal that would preclude judicial review for the detainees. Such review may be cumbersome but so far it's proved to...

By Andrew Cohen | September 25, 2006; 12:00 PM ET | Comments (1)

Melinda Duckett's Suicide Note- More on Grace

It turns out that Melinda Duckett, the young mother of a missing child, left a suicide note after she took her own life earlier this month following a tough interview with Nancy Grace. In it, according to the Associated Press, Duckett blamed the media generally, but not Grace by name, for what she was about to do. Duckett did, however, write in the note: "I only wish you do not push anyone else," according to the Seattle Times. Just exactly who the "you" in that sentence is will remain forever a mystery. I'm sure you folks will come to your own (and varied) conclusions. The AP reports that Duckett also wrote: "Your focus came off of my son. I love him and only wanted him safe in my arms... I do not bleed my emotions to the public and throughout this situation you did not understand that. There were many...

By Andrew Cohen | September 25, 2006; 7:00 AM ET | Email a Comment

The Devil is in the Details

Key Congressional leaders this afternoon, Republicans all, announced a "deal" with the White House over the treatment of and trials for terror detainees and that can't be a bad thing. But the strength or the weakness of the agreement only can be evaluated after we see the actual language the politicians say they want to include in the legislation. This will be another one of those instances where the word-for-word language of the law will determine its fate upon judicial review. And I'm willing to bet it is another one of those instances where the politicians purposely gin up ambiguous language so that all stakeholders can claim that the language gives them what they want while, in the end, the federal courts have to sort it out amid much clamour. We may have just seen a political breakthrough. But that doesn't guarantee legal success once the "new and improved" legislation...

By Andrew Cohen | September 21, 2006; 5:26 PM ET | Comments (4)

Gonzo Governance

The record of the current Attorney General of the United States is not exactly a distinguished one but it may have reached its lowest point yet when Alberto Gonzales Tuesday tried to distance his Justice Department from the horrible case of Maher Arar, the Canadian who was wrongly accused of being a terrorist (by Canada and the US) and then "rendered" to Syria where he was tortured. The Attorney General's lame soft-shoe was immediately repudiated by the Justice Department itself, on Wednesday, when a spokesperson said that her boss "had his timelime mixed up." Today's Times' report included this: "'The facts speak for themselves, you know,'" Mr. Arar said. "'The report (by Canadian officials, including a high-level judge there) clearly concluded that I was tortured. And for him to say that he does not know about the case or does not know I was tortured is really outrageous.'" Maria C....

By Andrew Cohen | September 21, 2006; 10:30 AM ET | Comments (4)

Talking Points This Time Thoughtful Points

When I first came across the Republican Policy Committee's paper "Responding to Hamdan" I figured it would be just another political hack job designed to muddy the truth about the complex fate of terror detainees through the use of mindless "talking points." I was wrong. The 16-page summary of the competing positions taken by the Bush Administration and its Senate opponents turns out to be a decent (if not entirely unflawed) analysis of the legal issues our government must resolve if we are to try the Guantanamo Bay detainees both quickly and fairly and also position ourselves to be able to conduct future interrogations around the world. Here is an example. The GOP paper states that: "The Administration proposes to clearly define the meaning of arguably vague terms in Common Article 3 -- prohibitions against "outrages upon human dignity" and "humiliating and degrading treatment" -- by explicit reference to the...

By Andrew Cohen | September 20, 2006; 2:30 PM ET | Email a Comment

Nevada Follow Up: Judges Will Get a Closer Look

In June, I wrote about the wonderful job the Los Angeles Times did in highlighting shocking conduct by Nevada judges. Now comes word that the Nevada Supreme Court, reacting to the Times' award-worthy work, is going to impose greater oversight of state judges. "The Times articles reported that southern Nevada judges had awarded millions of dollars in judgments in recent years without disclosing that some awards went to friends, business partners, former clients or people to whom the judges owed money," the Associated Press reported yesterday. So "Chief Justice Bob Rose circulated a statement Tuesday outlining new monitoring procedures that will start in November to ensure fair, impartial and reasonably prompt justice..." It's a good first step in rooting out the malfeasance that seems to have permeated the bench in Nevada. But it's not nearly enough....

By Andrew Cohen | September 20, 2006; 12:00 PM ET | Email a Comment

A Good Step for Judicial Accountability

Federal judges took three important steps yesterday toward becoming more accountable to the litigants before them. First, the Judicial Conference of the United States, the policy-making arm of the federal courts, decided to require all lower court judges to use a special computer program designed to ferret out more conflicts-of-interest that judges may have in any particular case. The Judicial Conference also voted to prohibit judges from accepting invitations to privately-funded seminars unless the folks running the seminars publicly disclose the invitation first. Finally, as the Post is reporting this morning, "a panel headed by Justice Stephen G. Breyer released a report (endorsed by Chief Justice John G. Roberts, Jr.) acknowledging that judges failed to properly investigate complaints of misconduct by colleagues in five of 17 `high visibility cases' between 2001 and 2005 -- an error rate the report called `far too high.'" When the Supreme Court speaks about such...

By Andrew Cohen | September 20, 2006; 9:00 AM ET | Comments (2)

Too Smart for his Own Good

Like Michiko Kakutani, I just finished reading, "Not a Suicide Pact: The Constitution in a Time of National Emergency," the latest book written by 7th U.S. Circuit Court of Appeals Judge Richard A Posner. And, like Kakutani, I thought it was a real crock. The famous book critic says that "many of Judge Posner's arguments in this book are riddled with self-serving contradictions" and "other arguments in this volume are no more than unsubstantiated -- indeed, highly dubious -- assertions... By the end of this chilling book," Kakutani writes, "the reader realizes that Judge Posner is willing to use virtually any argument -- logical or not -- to redefine constitutionally guaranteed rights like freedom of speech during wartime." She is right. There is something chilling about a leading (and profilic and influential) federal appeals court judge disemboweling the judiciary (in theory, anyway) at a time in our history when we...

By Andrew Cohen | September 19, 2006; 12:30 PM ET | Comments (3)

Another Blow to the White House's Detainee Plan

If you want to understand why the Bush Administration is losing its battle with Congress over terror detainee rules, just read Doug Struck's article this morning in the Washington Post. The lead? "Canadian intelligence officials passed false warnings and bad information to American agents about a Muslim Canadian citizen, after which U.S. authorities secretly whisked him to Syria, where he was tortured, a judicial report found Monday." The New York Times had this take on the story and the Globe and Mail, one of Canada's leading newspapers, offered this view. And if you really want to know how badly US and Canadian officials acted read the "Arar Commission" report here....

By Andrew Cohen | September 19, 2006; 9:30 AM ET | Comments (9)

Monday, Monday

Hello friends. I'll be travelling today and won't be able to post until this evening even if there is stunning, huge, breaking legal news in the meantime. On the bright side, there wasn't anything remotely close to any breaking legal news th is weekend so you won't be missing much. Have a good Monday. I will talk at you soon....

By Andrew Cohen | September 18, 2006; 7:59 AM ET | Comments (3)

The Wrath of Grace, Vox Pop

A lot of you had a lot to say about Nancy Grace after my post yesterday about her on-air antics and suicide of a mother whose two-year-old son has gone missing. We'll get to that in a little bit. In the meantime, media coverage of L'Affair Grace really has taken off. There is this from a guy named Irwin Kramer and this from a woman named Anna Johns and this (which reads a lot like my post, by the way) from a guy named Rick Ellis. There is even a column about her in today's San Francisco Chronicle with the headline: "CNN Talk Show Reaches New Depth Of Sleaze." Ouch. Judging from your comments, and not surprisingly, there is very little middle ground about Grace. People seem to either love her or hate her, which I suppose defines what it means to be a media personality in this Caustic Age....

By Andrew Cohen | September 15, 2006; 1:30 PM ET | Comments (29)

Time For the White House To Just Give Up

The Senate finally found its long-lost spine yesterday and held fast to its opposition to the Bush Administration's proposed plans to detain and try terror suspects. So if the White House is serious about bringing the men to justice quickly, and setting up a workable legal framework going forward, it should call off its legislative (and bureaucratic) dogs and sign on to the Senate plan. After five years of stalemate, it's time. The measure offered by John McCain (R-Ariz) stands a far greater chance of being approved by the US Supreme Court than does the Administration's proposal. Moreover, the McCain-backed legislation is ready to go now-- any delay, hesitation or intransigency by the White House means no legislation at all until after the November elections, at which time the White House may actually get a worse deal than the one the Senate seems to be offering now. Time is not...

By Andrew Cohen | September 15, 2006; 9:00 AM ET | Comments (133)

A Day of E-Papering the Record on Detainee Rights

"The world is beginning to doubt the moral basis of our fight against terrorism," Gen. Colin L. Powell wrote yesterday in a letter to Sen. John McCain (R-Ariz.) as the political battle is joined again over how to treat terror detainees both before and during their military trials. "To redefine" more narrowly Article III of the Geneva Conventions (as the Bush Administration seeks) "would add to those doubts." Powell wrote in a three-paragraph note made public today. "Furthermore, it would put our own troops at risk." Case closed, right? After all, if Gen. Powell thinks the Administration's end-run around the Geneva Conventions is a bad idea, and since even the current crop at this White House can't "Swift Boat" Powell, his brief letter seals the deal for opponents of the measure, right? But wait. The General's letter wasn't the only one making the rounds today. In fact, the flurry of...

By Andrew Cohen | September 14, 2006; 3:30 PM ET | Comments (17)

The Grace of Wrath

I don't know why Melinda Duckett committed suicide. And I am not remotely willing to go so far as to say that Nancy Grace, the eternally angry and vigilantified cable talk show host, contributed in any way to Duckett's suicide by conducting an "aggressive" interview with the mother (who may or may not have been a suspect in the disappearance of her two-year-old boy, Trenton) the day before she took her own life. Here is how the Associated Press covered the news: "Two weeks after telling police that her son had been snatched from his crib, Melinda Duckett found herself reeling in an interview with TV's famously prosecutorial Nancy Grace. Before it was over, Grace was pounding her desk and loudly demanding to know: 'Where were you? Why aren't you telling us where you were that day?' A day after the taping, Duckett, 21, shot herself to death, deepening the...

By Andrew Cohen | September 14, 2006; 8:45 AM ET | Comments (64)

The Myth of Judicial Activism

Another month, another kerfluffle over the phrase "judicial activism." Instead of accepting reality and conceding that it is a silly, pointless phrase not worthy of being defined or refined, the right and the left and the center this week find themselves fighting again over... nothing. These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it. The latest flap all started when a law professor at the University of Kentucky, Lori Ringhand, studied the voting patterns of U.S. Supreme Court Justices to try to determine whether she could quantify and qualify the phrase "judicial activism." Here is her paper so you can read it for yourself. After...

By Andrew Cohen | September 13, 2006; 2:45 PM ET | Comments (11)

You Read it Here First

The good news this morning comes from the New York Times where Kate Zernike reports that key Senate leaders and the White House are moving ever closer to a compromise that would break the impasse over the rules governing military tribunals for terror detainees. And, guess what? The compromise is precisely the one I both predicted and urged months ago here on this very blog. I am very gratified that our nation's leaders took my advice and hope I can help out the nation further in the future. (Just kidding about that last sentence-- please don't send nasty comments). Seriously, it is indeed very encouraging, if Zernike's report is true, that the White House and the Senate may have solved the problem of what to do about showing classified evidence to the detainees without sacrificing national security. Key Senators (and the courts and many military lawyers) believe that the detainees...

By Andrew Cohen | September 13, 2006; 9:00 AM ET | Comments (6)

The Death of Hyperbole Over 9/11

Of the torrent of words spoken Monday before, during, and after the many ceremonies that marked the fifth anniversary of the terror attacks upon America, the remarks that resonated most with me were spoken by Keith Olbermann on MSNBC. In a scathing critique of the Bush Administration's reaction to the 9/11 attacks, Olbermann said: "Yet what is happening this very night? A mini-series, created, influenced -- possibly financed by -- the most radical and cold of domestic political Machiavellis, continues to be televised into our homes. The documented truths of the last fifteen years are replaced by bald-faced lies; the talking points of the current regime parroted; the whole sorry story blurred, by spin, to make the party out of office seem vacillating and impotent, and the party in office, seem like the only option. How dare you, Mr. President, after taking cynical advantage of the unanimity and love, and...

By Andrew Cohen | September 12, 2006; 4:00 PM ET | Comments (8)

Girls Gone Wild!--And Their Records Gone Missing!

The Justice Department has announced within the past hour that the folks who produce those "Girls Gone Wild" videos have agreed to plead guilty to the crime of "failing to create and maintain age and identity" records of the young women who appear, typically drunk and topless, in the quick-selling videos. There will be significant fines and penalties paid-- a few millions of dollars-- and the companies involved will essentially be on probation for several years. According to a press release out of the Northern District of Florida, the deal comes after charges (or threatened) under a new federal law designed to protect "against the use of minors in the production of sexually explicit material by requiring producers to create and maintain age and identity records for every peformer in sexually explicit movies and other media."...

By Andrew Cohen | September 12, 2006; 2:00 PM ET | Comments (4)

Only One More Chance to Get it Right

The Post this morning reports that the White House has "gained concessions" from the Senate in negotiations over the rules that would govern the prosecution of Guantanamo Bay detainees in military tribunals. But one of the key "concessions" reportedly would preclude the detainees from challenging their detention in US courts. I'm not sure that is ultimately going to fly with the Supreme Court and, of course, the whole point of President Bush's big show last week was to try to expedite the prosecution of men like Ramzi Binalshibh and Khalid Sheik Mohammed, genuine leaders of the 9/11 plot. The last thing the executive and legislative branches ought to do now is agree upon a set of tribunal rules that are doomed to fail the constitutional test to which they will be subjected. On a completely unrelated note, does anyone remember Mike Moran, the New York firefighter who had his 15...

By Andrew Cohen | September 12, 2006; 9:30 AM ET | Comments (1)

It's All in The Names

Five years later, I have nothing original to add to the countless millions of words and thoughts devoted to what happened on September 11, 2001 and since. But I did write something many years ago that I consider to be one of the most important columns I have ever written on any subject at any time. Certainly, it is the one column which generated the most response I have ever received in nearly 10 years of doing this. Here is what I wrote four years ago for CBSNews.com., on the one-year anniversary of the terror attacks on America. This column first appeared on September 12, 2002 and has been reposted since: Look to the List "It was as it should be. One year later, America endured a day dominated by the poignant, eerie, overwhelmingly sad, long reading from the book of the dead. Nothing the politicians could say, and nothing...

By Andrew Cohen | September 11, 2006; 7:00 AM ET | Email a Comment

It's Not as Bad as The Good Professor Thinks

I don't normally disagree with David Cole, the constitutional law professor who has distinguished himself over the last five years with his analysis and insight into the legal war on terrorism. But his essay today about whether the "New Gang of 14" terror masterminds can be tried at Guantanamo Bay is a little too pessimistic for me. Cole argues: "It seems highly unlikely that these men--who include Khalid Sheikh Mohammed, the alleged mastermind of 9/11, as well as several other high-level al-Qaida leaders--can actually be brought to justice, precisely because of the way the CIA treated them. Here, as in so many of its other national security initiatives, the Bush strategy has backfired, leaving the government fatally hamstrung in holding real terrorists accountable. Just as in Iraq, the administration violated basic principles of the rule of law in the name of "preventing terrorism," and we are all now paying the...

By Andrew Cohen | September 8, 2006; 4:30 PM ET | Comments (1)

How the White House Got Here

Excellent piece this morning in the Post detailing the twisty, turny way in which the Bush Administration finally decided to bring the worst terror suspects in from the cold of those dark, secret CIA prisons. Judging from the report, the reasons are precisely those speculated about on Wednesday when President Bush announced the change in policy: the Supreme Court's Hamdan decision, coupled with political pressure from our allies, and political opportunity here at home, combined to seal the deal. Meanwhile, just about every major news outlet this morning has a piece on how the military and several Republican leaders aren't rushing to embrace the White House's proposed procedures to try the men. I have written about this extensively here and here and here and here and here and even here and here and here and here. And all I will say now is that if Congress holds the line and...

By Andrew Cohen | September 8, 2006; 9:00 AM ET | Email a Comment

One Small Step for Man, One Giant Leap for Horses

By a vote of 263-146, and after a few hours of passionate debate, the House of Representatives this afternoon passed H.R. 503, the American Horse Slaughter Prevention Act, a bill that would ban the domestic slaughter of horses for human consumption. The measure now goes to the Senate, where it will meet its share of procedural, structural and temporal roadblocks. There will be plenty of time to discuss and debate those and to again rally the troops for a worthwhile cause. For now, it's time to praise people like Rep. John Sweeney (R-N.Y) and Rep. Ed Whitfield (R-KY) who knew the grim facts about horse slaughter and who bravely weathered hours of nonsense on the floor of the House by opponents of the legislation. My favorite moment came when Rep. John Salazar (D-Colo.) argued that the measure would inappropriately force citizens to subsidize the saving of horses only to be...

By Andrew Cohen | September 7, 2006; 4:15 PM ET | Comments (38)

Gitmo News: Left, Right, Left, Right

The sounds of crickets I heard yesterday came from the right, from the folks who typically rip apart my posts from pillar to, uh, post. Satisfied I guess that I "got it right" this time they left me alone and went off to pillage some other guy's blog. The sound and the fury about my first take on the White House's huge Gitmo announcement instead came from the left, from the folks who typically either tolerate my posts or even perhaps support them. Why? Because I didn't use the opportunity to rip into the Administration for its years-long reluctance to do what it did yesterday. For years Democrats have justifiably railed upon President Bush to do more to clean up the Guantanamo Bay mess. On Wednesday, the President moved to begin to do that. He brought to Gitmo the most important Al Qaeda prisoners in our custody. He pledged to...

By Andrew Cohen | September 7, 2006; 12:00 PM ET | Comments (5)

Another Reason to Oppose Horse Slaughter

The Bush Administration, via the Department of Agriculture, now has gone on record as saying that it opposes H.R. 503, the pending bill that would ban the domestic slaughter of horses for human consumption overseas. One day before a scheduled vote on the measure, the USDA told House Agriculture Committee Chairman Rep. Bob Goodlatte (R-Kansas) what he wanted to hear-- that the USDA believes the legislation will make horses worse off, not better off, than they are now. That's not a credible argument for many reasons, not the least of which is that under the USDA's industry-cozy watch foreign-owned slaughterhouses have been allowed to use barbaric tactics to slaughter horses before shipping them overseas for human consumption. These procedures involve the vivesection of horses (cutting them up while they are still alive) and other unspeakable acts of cruelty. The USDA now has the gall in its knee-bending, pre-vote exercise to...

By Andrew Cohen | September 7, 2006; 8:00 AM ET | Comments (11)

Finally, Light At The End of the Island

I'm sure there are persistent critics of President Bush's policies who will declare today's stunning news about high-level terror detainees to be just "politics as usual." Those critics are wrong. Whatever motivated the White House to bring in from the cold 14 high-level terror detainees, including the infamous Khalid Sheik Mohammed and Ramzi Binalshibh, and prepare them for trial at Guantanamo Bay, Cuba, is largely irrelevant. What is important is that the men now are measurably closer to facing justice under American law. This is an absolutely good thing. Good for us as a nation and more importantly good for the tens of thousands of 9/11 victims and survivors who already have waited nearly five years to get their "day in court" against someone who actually had something to do with the worst crime in American history. The White House's trifecta-- bringing the terror big-shots in from those secret CIA...

By Andrew Cohen | September 6, 2006; 3:38 PM ET | Comments (9)

Horse Sense (more)

I don't usually respond directly to folks who comment on my posts, especially when those folks don't identify themselves and really truly especially when the commenter calls me unprincipled and tries to compare me with religious conservatives. But I am going to respond to "Don't Get it" anyway and forgive him or her for the tone of his or her post about the American Horse Slaughter Protection Act and my reaction to it. Don't Get it asks: "I don't get your objections (to the mass slaughter of our horses for human consumption). Are you against the use of horses as meat or do you believe that horses can be used for meat but should just be euthanized in a more human (sic) manner?" I also want to respond to a much more polite comment from Horsegal, who wrote: "I have a rescue horse but I still don't think this is...

By Andrew Cohen | September 6, 2006; 12:30 PM ET | Comments (12)

Big News in Boston

Big news in and for Boston yesterday when a federal judge ruled that the FBI caused the death of a Quncy fisherman by mishandling two informants, including the notorious (and now missing) James "Whitey" Bulger. The judge ordered the feds to pay more than $3 million to the victim's family. The Boston Globe reports that: "US District Judge Reginald C. Lindsay , who presided over an 18-day bench trial in June, ruled that former FBI agent John J. Connolly Jr. warned Bulger and (Bulger henchman Stephen) Flemmi that (fisherman John) McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre's murder." And it did. The Globe reports that in 1984: "McIntyre, 32, was lured to a South Boston home, chained to a chair, grilled for hours, choked, and shot to death, according to Flemmi. His remains weren't discovered until January 2000."...

By Andrew Cohen | September 6, 2006; 9:00 AM ET | Comments (1)

Time to Step Up for Horses

Two days from now the House of Reprsentatives will begin to debate H.R. 503, called the American Horse Slaughter Prevention Act. The legislation is designed to put an end to a vile industry that long ago should have been put out of our misery. Last year, approximately 100,000 horses were brutally killed in this country-- filleted while they still were alive-- and then processed into meat at foul, polluting, dark, foreign-owned slaughterhouses. The meat then is shipped overseas for human consumption. Is that the sort of industry you want in this country? Is that the way you want to see horses treated? Think it doesn't say a lot about us as a people that we haven't already put a stop to this machinery of death? As devoted readers of the Bench know, I am not a neutral observer on this one. I own two horses and I have recently become...

By Andrew Cohen | September 5, 2006; 4:15 PM ET | Comments (9)

Hooray for Harvie!

Welcome back from vacation. Although I was tempted to write this morning about the poor Crocodile Hunter, my son's fave television personality, I decided instead to stay true to Bench Conference's focus and draw your attention to this fine op-ed piece this morning by J. Harvie Wilkinson III, a federal appeals court judge from the 4th U.S. Circuit Court of Appeals. Blasting both the right and the left, Judge Wilkinson bemoans the rush to "constitutionalize" the issue of same-sex marriage. "To constitutionalize matters of family law is to break with state traditions," he writes. "The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six." Read the...

By Andrew Cohen | September 5, 2006; 9:21 AM ET | Comments (2)

Lawyer, Up!

America needs more lawyers like New Orleans needs more water and yet, year after year, law schools good and bad churn out more baby attorneys than the legal industry can digest. There is far more supply than demand and so a great many young lawyers find themselves struggling after spending, say $100,000 or so, on a law school education. By the way, nothing you learn in law school prepares you to take the bar exam and nothing you have to learn for the bar exam prepares you to practice law-- but that's another story. Anyway, if you open up today's New York Times you'll read this. The going rate for first-year attorneys in New York City has risen to $145,000/year excluding bonuses. The firms say they need to offer that kind of lettuce to attract the best law school candidates but I am here to tell you that coming out...

By Andrew Cohen | September 1, 2006; 9:00 AM ET | Comments (10)

 

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