Dawn Johnsen, a member of ACS' Board of Directors and former head of the Office of Legal Counsel, shares her reaction to the newly released John Yoo OLC memorandum. She writes:

The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

She dismantles John Yoo's assertion that the memo's legal reasoning was "boilerplate." Professor Johnsen writes:

In today's New York Times, Jeffrey Rosen reviews Eric Lichtblau's new book "Bush's Law: The Remaking of American Justice," calling it "a gripping account of Mr. Lichtblau’s efforts to expose various forms of secret surveillance and the Bush administration’s Nixonian efforts to retaliate against him and other critics: 'All the President’s Men' for an age of terror."

In particular Rosen highlights Lichtblau's exploration of

• The broader costs of the Bush administration’s excesses for innocent victims and for the rule of law
• Memorable accounts of some of the 2,700 men locked up after 9/11 by American authorities; most of those men were never shown to have connections to terrorism
• The many innocent victims whose e-mail messages, phone calls and political activities were secretly surveilled
• [How] the Bush administration  . . . was ruthless in retaliating against its critics, in and out of government
• [The discussion of] whether to publish the article by Mr. Lichtblau and Mr. Risen that disclosed the secret surveillance program, [including the claim] that the administration had lied to The Times in describing the scope of the program and in claiming that administration lawyers unanimously supported it

In an article just published in the Columbia Law Review, Yale Law School Heyman Fellow David Pozen writes about what he calls "the irony of judicial elections." The central irony, according to Pozen, is that as judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes.

He reaches this conclusion after first synthesizing arguments for and against elective judiciaries and exploring how recent developments have increased both their costs and their benefits. Ultimately, Pozen concludes:

I am not suggesting that there are universal answers when it comes to state judicial selection—just that the debate is being conducted on the wrong terms. Those who would support elective state judiciaries ought to be openly celebrating the new era. Those who would have the judiciary be more than just another majoritarian branch might do well to abandon the accommodationist posture, at least for a moment, and to remind the public and each other that there is no adequate remedy for this threat save to dismantle judicial elections.

Vanity Fair has a lengthy article by Phillippe Sands that examines the decision to allow the U.S. military to begin using coercive interrogations at Guantanamo. He wrote:

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision [to use coercive interrogations] was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantánamo began, and how it spread.

The Pentagon lodged a capital murder charge against an alleged al-Qaeda operative for actions committed before the Sept. 11 terrorist attacks, The Washington Post reported.

The alleged al-Qaeda member, Ahmed Khalfan Ghailani, was held secretly by the CIA before being sent to Guantanamo Bay in 2006. Pentagon prosecutors are seeking the death penalty against Ghailani before a military commission tribunal at Guantanamo Bay for, among other things, his alleged involvement in the 1998 bombing of the U.S. embassy in Tanzania, where at least 11 people were killed and nearly 100 injured.

by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center

April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.

I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.

The Washington Post reported this evening on the declassification and release of an 81-page memorandum written by former Deputy Assistant Attorney General John Yoo and issued on March 14, 2003 on "the Military Interrogation of Alien Unlawful Combatants Held Outside the United States." This memo is different from the already publicly available "torture memo," written in 2002, in that the 2003 memo focused on interrogation techniques to be used by the Department of Defense, whereas the 2002 memo focused on techniques to be used by the CIA . The Pentagon interrogation memo argues that "numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers."

The memo is available from the Post in two parts: here and here. [Update: The Post only has the first forty pages:  Georgetown Faculty Blog has the whole thing: parts 1, 2] Its contents are described as "asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes." The memo "argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce 'an extreme effect' calculated to 'cause a profound disruption of the senses or personality.'"

Professor Marty Lederman has a first reaction to seeing the full text of the memo.

Louis Fisher examined arguments public advanced by Professor Yoo in this 2006 article entitled  "Lost Constitutional Moorings: Recovering the War Power." ACS has more resources on the proper role of the Department of Justice for whom Professor Yoo worked, including an issue brief on how to avoid another "torture opinion", and a white paper on principles to guide the Department of Justice.

Aziz Huq, director of the Brennan Center for Justice's liberty and national security project, wrote recently about the state secrets privilege in The Hill's Congress Blog. He said:

The “state secrets” privilege does not merely entail that those harmed by reckless or foolish security policy are deprived of a day in court. When a plaintiff cannot air evidence in his own custody of government wrongdoing in court, the public also loses a constitutionally mandated avenue for testing their government’s claims to be acting lawfully and in line with the nation’s best interests. One of the Constitution’s two devices for systemic executive accountability—the other being congressional oversight—expires.

ACS is hosting a conference this Friday on Capitol Hill on the state secrets privilege, where Aziz Huq is scheduled to be joined by Justin Florence, Fellow, Georgetown Center for National Security and Law; Richard Samp, Chief Counsel, Washington Legal Foundation; Michael Vatis, Partner, Steptoe & Johnson LLP, former Director of the National Infrastructure Protection Center at the FBI and Special Counsel at the Department of Defense; Ben Wizner, Staff Attorney, American Civil Liberties Union; and Jonathan Turley, Professor of Law, The George Washington University Law School, who will moderate the event.

ACS will make available video from the event.

The U.S. Supreme Court announced March 31 that it will hear a Utah dispute over a religious group’s request for a display of its religious messages, called “Seven Aphorisms,” in a city park alongside a Ten Commandments monument. The Supreme Court granted cert. for a review of the 10th U.S. Circuit Court of Appeals’ decision, Pleasant Grove City v. Summum, in favor of the Salt Lake City-based religious group.

When the U.S. Supreme Court denied certiorari in Hurn v. U.S. on Monday, March 31, it refused to review judicially imposed punishments of defendants acquitted for certain crimes, David Savage reported in the Los Angeles Times.

Here is a comprehensive list of the House and Senate schedule and hearings. The following links are to the daily calendars for the House and Senate. Here is the weekly House whip information (majority/minority) and the Senate floor schedule.

Of note: On Thursday, the Senate Committee on Judiciary will consider whether to statutorily define the state secrets privilege, five federal judicial nominations and a nomination for Assistant Attorney General.

SCOTUSBlog has full coverage of the Supreme Court's decision in a water boundaries case, its refusal to grant certiorari in a "speech or debate" clause case arising from the FBI's search of a Congressional office, and its grants of certiorari regarding a religious sect that wants to add a 10 Commandment-like monument to a public park and a First Amendment challenge to an Idaho law that prohibits local governments from allowing employee payroll deductions to pay for political activities by labor unions.

This CRS Report further delves into the Constitution's "speech or debate" clause

60 Minutes reports on Murat Kuranz, in what CBS describes as "a rare look inside [America's] clandestine system of justice, where the government's own secret files reveal that an innocent man lost his liberty, his dignity, his identity, and ultimately five years of his life." The former detainee claims he "was held underwater, shocked, and suspended from the ceiling."

A federal judge in Alexandria ruled this month that a commercial plagiarism-detection tool called Turnitin does not violate the copyright of students who are required to submit their papers through the service. Four high school students had sued iParadigms, which operates Turnitin, arguing that the company included their papers in the system without their permission.

The judge ruled that although the company stores digital copies of their essays in a database, the archiving is fair use of the papers and provides "a substantial public benefit.” The decision has implications for other digital archiving services, such as Google Library, which scans and indexes books online.

A California judge ruled that Starbucks must pay its California baristas $86 million, plus interest, for violating of the state’s tip-pooling law by using some of the employees’ tips, received from tip jars, to pay shift supervisors.

The Second Circuit formally adopted the “ministerial exception” to Title VII, holding that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause of the First Amendment. The court unanimously dismissed a lawsuit brought by an African-American Catholic priest against his Bishop and Diocese claiming that canon law had been misapplied for racially motivated reasons.

Two Decisions: The Supreme Court issued two decisions this week in Medellin v. Texas and Hall Street v. Mattel. The Medellin opinion, written by Chief Justice Roberts (with Justice Stevens concurring and Justices Breyer, Souter, and Ginsburg dissenting), attracted significant commentary. As Edward Lazarus described, it pitted the Court's states' rights advocates against advocates for greater presidential power and internationalists against those disdainful of international law. The Court held that rulings by the International Court of Justice require additional congressional action before being binding on the states, and that a presidential order to the states to give effect to the treaty has no legal effect. The Hall opinion, written by Justice Souter (with Justices Stevens, Kennedy, and Breyer dissenting), held that parties cannot contractually agree to expand judicial review beyond that allowed by the Federal Arbitration Act, in this case, to errors of law.

Seven Arguments: The High Court heard argument in seven cases this week (transcripts available here). The cases included a jurisdictional question of whether U.S. courts can hear habeas appeals from American citizens held by U.S. coalition-led forces in Iraq, the level of competency necessary for self-representation in a criminal trial, and whether the Voting Rights Act was violated by the appointment of a county official instead of holding a special election. SCOTUSBlog has more here.

Cert.: The Supreme Court granted certiorari in two cases this week. In U.S. v. Hayes, the Court will examine what the relationship between the offender and victim must be to qualify as a "misdemeanor crime of domestic violence." In Pearson v. Callahan, the Court will examine whether police may enter a home without a warrant immediately after an undercover informant bought drugs inside and whether qualified immunity was properly denied to the police officers involved.

Triple Play: Litigator (and frequent ACS program participant) Tom Goldstein scored a "triple play" this week when he worked on three cases argued before the U.S. Supreme Court on the same day.

Stories:

• Daniel Conkle, Professor of Law at Indiana University School of Law – Bloomington , explored the establishment clause and religious expression in governmental settings.
• “Is public reason counterproductive?” by Eduardo M. Peñalver, Associate Professor of Law at Cornell Law School.
• A look at federal privacy law in the wake of revelations of snooping in politicians' passport files.
• A discussion of “living constitutionalism.”
• An overview of this week’s Supreme Court arguments.
• Articles from the latest issue of the Harvard Law & Policy Review, the official journal of ACS.

John Wonderlich at the Open House Project makes an interesting point in that the Congressional Record isn't always all that accurate, even though corrections, by rule, should be limited to typographical and grammatical errors.

"Former Gov. Don Siegelman, who has spent the past nine months behind bars, will be freed from prison today after a court ruled there were substantial questions about his conviction in a government corruption case, his lawyer said. . . . The ruling came the same day the U.S. House Judiciary Committee announced it wanted Siegelman to testify before Congress about the possible role of politics in his prosecution," the Birmingham News reported.

The Judiciary Committee is investigating allegations that partisans in the Justice Department pursued cases against Democrats for political reasons, and Siegelman's is one of several cases under scrutiny. Siegelman has maintained that Republicans out to derail his political career were behind his prosecution.

Wired explores the FBI's budget for making old telephone switches wiretap friendly, including the rates the government pays to have a phone tapped for 30 days.

In a recent blogpost, Professor Jack Balkin explains "living constitutionalism" as a model where "successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations." He contrasts living constitutionalism with originalism:

Living constitutionalism is primarily a theory about what makes the process that produces changing interpretations of the Constitution legitimate. It is not primarily a theory that offers advice to judges about how to decide particular cases, for the general sort of advice it offers– keep up with the times, and adapt to changing conditions– is probably unnecessary in any event.

Papers from a symposium hosted by ACS last year, including one by Professor Balkin, further explore the issue of "Keeping Faith with the Constitution in Changing Times."

The latest edition of the Harvard Law & Policy Review, the official journal of the American Constitution Society, is now available. This issue includes discussions on progressive visions of the corporation, ensuring access to quality education, the reshaping of the global warming debate, liberty in a democratic society, and articles from two symposia on housing policy and health care, plus several short essays. Links to the articles are below the fold.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Daniel Conkle, Professor of Law at Indiana University School of Law--Bloomington, introduces his paper, "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard."

In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on “legal judgment,” an approach informed by doctrinal and policy considerations but not controlled by any formal test.

In this Essay, I suggest that Justice Breyer may have been right in Van Orden–if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables.

The Open Society Institute announced a new fellowship program to "enable outstanding individuals from around the world to pursue projects that will inspire meaningful debate and shape public policy." OSI will award $2 million in 2008 to people working in the following areas: national security and open society; citizenship, membership and marginalization; strategies and tools for advocacy and citizen engagement; understanding authoritarianism; and areas of emerging interest. Guidelines for applying to the fellowship are available here.