A federal appeals court rejected a defamation claim lodged against the Air America Radio host Randi Rhodes for condemnations she leveled at interrogators involved in the notorious abuses of Iraqi detainees at Abu Ghraib. The private defense contractor CACI Premier Technology, Inc. and CACI International, Inc. (CACI) brought a libel lawsuit against Rhodes and Air America Radio in 2004 after Rhodes sharply criticized the CACI interrogators for their involvement in the Abu Ghraib prison scandal.

Rhodes lashed the CACI interrogators as “killers” who raped children and engaged in torture of detainees, reported the American Lawyer. Rhodes also tagged CACI interrogators as shills for an Apartheid-supporting company. “They don’t report to anybody,” Rhodes said on her program. “They’re not loyal to you, they’re not loyal to me. They’re not loyal to America. They’re loyal to the corporation. And they have fought on the side of Apartheid, just like Cheney used to vote against abolishing Apartheid.”

In fall 2006 a federal judge dismissed CACI’s libel lawsuit, saying that Rhodes’ comments were protected by the First Amendment. This week, the Fourth U.S. Circuit Court of Appeals agreed, finding that CACI did not carry its burden of proving that Rhodes’ comments were made with “reckless disregard for the truth.” The Fourth Circuit in CACI v. Randi Rhodes also concluded that, “Rhodes relied on several reliable sources in accusing CACI of torture at the Abu Ghraib prison. In sum, the record establishes that Rhodes did not make any statement that CACI committed torture with reckless disregard as to whether the statement was false or not.”

Salim Hamdan, who is being held at the military’s detention facility in Guantanamo Bay, Cuba, and served as Osama bin Laden’s driver, was convicted by a military tribunal of providing material support for terrorism and acquitted of conspiracy charges, the New York Times reported. ACSBlog published reports from the trial by observers Sahr MuhammedAlly, Aaron Zissler, and Frank Kendall, who represented the organization Human Rights First.

The Associated Press reported “Hamdan's attorneys said the judge allowed evidence that would not have been admitted by any civilian or military U.S. court, and that interrogations at the center of the government's case were tainted by coercive tactics, including sleep deprivation and solitary confinement.” Hamdan faces life in prison.

Yesterday evening, Military Commission Judge Keith Allred acknowledged that he “may very well have instructed the [military commission jury] members erroneously,” but the prosecution and defense apparently agreed to let the original jury instructions stand, the Times reported.

Shayana Kadidal, the head of the Guantanamo Project at the Center for Constitutional Rights, which represents many of the detainees, recently explained the Attorney General’s new proposal to have Congress intervene in habeas proceedings brought by the detainees to challenge the military commission proceedings. The two part article is available here: part 1, part 2.

In June, ACS released an issue brief by Ahilan Arulanantham, a staff attorney with the ACLU of Southern California, on reforming the material support of terrorism laws under which Hamdan was convicted. The Congressional Research Service released an overview of the material support provisions in 2006. In another ACS Issue Brief, Anthony Renzo examined what constitutes the proper role of military tribunals and the history of the writ of habeas corpus.

Lawmakers in Congress are pushing a bill that would trump the District of Columbia’s newly enacted regulations of handguns. The Washington Post reports that the measure, dubbed the “Second Amendment Enforcement Act,” is likely to be voted on in the House in September. The bill, H.R. 6691, is aimed at invalidating the District’s newest regulations on handguns passed in mid-July. The District approved the new regulations, which include requiring residents to register handguns with D.C police and keeping the guns unloaded, disassembled or fitted with trigger locks when stored, three weeks after the U.S. Supreme Court struck down the District’s 32-year-old handgun ban.

The high court in District of Columbia v. Heller concluded that the D.C. ban on handguns violated an individual’s Second Amendment right to possess guns. Rep. Jason Altmire (D-Pa.), one of the sponsors of the bill, says D.C.’s newest regulations on guns remain unconstitutional. In a statement about the bill, Altmire maintained that it would “ensure that government does not infringe upon the rights of law abiding citizens in the District of Columbia.” Del. Eleanor Holmes Norton (D-D.C.) in a statement critical of congressional efforts to nullify the District’s newest gun regulations said she would work for the defeat of the bill in the Senate. Obtain additional analysis of the Heller decision from a panel discussion at the 2008 ACS National Convention and ACS guest blog posts here and here.

by Dr. John Prados, a senior fellow of the National Security Archive in Washington, D.C. and author most recently of the book Safe for Democracy: The Secret Wars of the CIA.

The Foreign Intelligence Surveillance Act of 1978, the law that has been subjected to such buffeting during this new age of Big Brother, did not arise from nowhere. The 1978 Act responded to necessity—a need driven by numerous revelations of arbitrary, overbearing, and chilling measures taken by U.S. security services against American citizens. Then, like now, an overarching imperative was invoked to justify a host of wrongs. The Communist Threat then — like the Terrorist Threat now — cloaked extralegal and plainly illegal actions that Americans in their right minds would never have accepted.

With Congress having just enacted legislation that will undermine FISA’s bulwark against unchecked executive branch surveillance of Americans, it is instructive to revisit the era of the 1960s and 1970s when this challenge to democracy was last confronted. The topology of government activity, it turns out, was not so different from today.

Just as now, the government read telegrams, listened in on telephone conversations, opened mail, broke into homes, assembled watch lists, and violated the law. In the 1970s, Congress acted to reign in these activities. Will it do so again?

A bill that would require the U.S. Attorney General to study racial and ethnic disparities in the judicial system is wending its way through Congress. In July, Sen. Joseph Biden (D-Del.) introduced the “Justice Integrity Act,” along with Sens. Arlen Specter (R-Penn.), Benjamin Cardin (D-Md.) and John Kerry (D-Mass.). The measure, S.3245, would require the Attorney General to create advisory groups in ten federal districts to examine and determine the pervasiveness of racial and ethnic disparity in the criminal justice system.

In a statement announcing the measure’s introduction, Biden said, “Nowhere is the guarantee of equal protection more important than in our criminal justice system. The reality is that despite the best efforts and intentions of policymakers, racial and ethnic disparities continue to plague our justice system. We need to step up our efforts to root these disparities out.” Biden maintained that recent studies, reports and case law have documented racial disparities in the criminal justice system. Additionally the bill would require the Attorney General to make public the findings of the groups’ studies and recommendations on how to eliminate racial and ethnic disparities. The measure is pending in the Senate Judiciary Committee. A similar bill, H.R. 6518, has been introduced in the House, by Rep. Steve Cohen (D-Tenn.).

U.S. Supreme Court watchers have produced more analysis of the high court’s latest term. According to People For The American Way Foundation the U.S. Supreme Court remains ideologically divided and is becoming a powerful friend of big business. The 48-page report, “Civil Rights & Civil Liberties In The Supreme Court’s 2007-08 Term,” tracks “key decisions” and finds that the Court’s sharply divided ideological rulings “reaffirm the disturbing direction of the Roberts Court.” The Court’s right-wing voting bloc, PFAWF notes, consists of Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. Its “moderate-to-liberal” wing is comprised, the report maintains, of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Anthony Kennedy, the report says, has “continued to provide the deciding vote in critical cases ….”

PFAWF’s report says the term that ended earlier this summer also reflects “what appears to be a growing hostility on the Roberts Court to facial challenges, and a willingness to allow a law to be implemented and create actual harm (which could include a violation of constitutional rights)” before a substantial claim is lodged. For example, the report cites the high court’s ruling in Crawford v. Marion County, which upheld Indiana’s voter ID law. The decision, PFAWF argues quickly prompted harmful consequences, citing a situation in Indiana’s primary election in the spring where some nuns were barred from voting because they did not have drivers’ licenses. The report also maintains that “Overall, the Court has grown more conservative in recent years, increasingly becoming a friend of big business and issuing decisions that protect corporate America ….” See the entire report here.

For more discussion of the high court’s work, watch ACS’s 2008 Supreme Court Term Review hosted last month at the National Press Club and obtain other ACS material on the Supreme Court here.  

The New Jersey Supreme Court delved into workplace discrimination based on religion in a current case involving a police officer who charged his subordinates and fellow officers with degrading his Jewish faith. In a unanimous ruling issued last week, the New Jersey high court ruled that Jason Cutler, an officer with the Haddonfield Police Department, had proved that his rights under the state’s Law Against Discrimination (LAD) had been violated by his superiors and co-workers.

For the first time, the New Jersey Supreme Court ruled that a person bringing a claim of workplace discrimination based on religion does not have a higher burden of proof than those charging discrimination based on gender or race. “Consistent with this state’s strong policy against any form of discrimination in the workplace, we hold that the threshold for demonstrating a religion-based, discriminatory hostile work environment cannot be higher or more stringent than the threshold that applies to sexually or racially hostile workplace environment claims,” Justice Jaynee LaVecchia wrote for the court in Cutler v. Dorn. Cutler sued the police department after discriminatory comments about his religion became unbearable.

A supervisor, on more than one occasion, referred to Cutler as “the Jew” and was asked “where [his] big Jew … nose was.” Additionally, Cutler overheard a fellow patrolman refer to “Those dirty Jews.” The New Jersey court concluded that those and other remarks and actions by Cutler’s superiors “demonstrated an anti-Semitic bigotry that has no place in a workplace of this state.”

by Shayana Kadidal, head of the Guantánamo project at the Center for Constitutional Rights

[This is the second half of an article examining Attorney General Mukasey’s recent call for Congress to enact legislation governing Guantanamo detainee’s habeas court proceedings. The first half is available here.]

Attorney General Mukasey called for a third round of legislation to ensure that the federal courts will never force the Bush administration to explain why they have held our clients in Guantánamo for over six years. Mukasey’s complaints and legislative proposals, outlined in a speech before the American Enterprise Institute and in testimony before Congress, are another attempt to drag us into years of further delays in these cases. This article concludes my examination of his arguments, one-by-one, to delve beyond the administration’s rhetoric.

Three heavily redacted Justice Department memoranda released pursuant to an ACLU FOIA request revealed additional information about CIA interrogation techniques.

Bush administration lawyers told the CIA in 2002 that waterboarding and other harsh measures were permissible so long as the interrogators possessed an “honest belief” that their actions did not cause severe suffering, the Washington Post reported. ACS resources on the proper role of the Justice Department are available here.  

A federal judge ruled that an anonymous donor cannot post bail for Brent Wilkes, a California businessman convicted of bribing former Congressman Randy “Duke” Cunningham, but must instead reveal his name. “This person . . . has to step up and stand here with Mr. Wilkes,” the judge said.

Senator Ron Wyden (D-Ore.), a member of the Senate Select Committee for Intelligence, asked the Public Interest Declassification Board to review the Foreign Intelligence Surveillance Court’s opinions over the last ten years and make recommendations on whether its opinions should be classified or unclassified.

According to a Secrecy News report, one of the FISA judges acknowledged that the court has issued several “legally significant decisions that remain classified.”

The Department of Homeland Security today made public its policies that allow federal agents to seize, without suspicion of criminal activity, travelers’ laptops and other materials at border crossings. The policies from the DHS’s U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement branches allow federal officers to “search, review, retain, and share certain information possessed by individuals” traveling across borders. Federal agents may seize and examine “documents, books, pamphlets, and other printed material, as well as computers, disks, hard drives, and other electronic or digital storage devices.”

According to the policies, which The Washington Post reported were made public because of pressure from civil liberties and business travel groups, materials seized can be kept “for a reasonable period of time” and shared with other agencies of the federal government. The U.S. Customs and Border Protection’s policy says such unfettered search and seizure methods are warranted to help discover information regarding “terrorism, narcotics smuggling, and other national security matters ….”

Sen. Russell Feingold (D-Wis.) called the policies “alarming” and said he would introduce legislation to require reasonable suspicion for border searches, as well as to prohibit racial profiling.    

“The FISA review process is still ‘infected’ with a law enforcement mentality,” according to an intelligence community employee quoted in a report in Secrecy News, a publication of the Federation of American Scientists.

The creation of the National Security Division of the Department of Justice in 2006 was meant to consolidate review of intelligence practices to better fit operational needs, according to the article, but had the unintended consequence of transforming the part of the Justice Department that processes applications for domestic surveillance from acting independently to working “as an arm of the FBI.”

Who are the “activist judges” on the U.S. Supreme Court and are lower federal courts filled with similar judges? Cass R. Sunstein, a Harvard Law School professor, and some of his colleagues, pored over 20,000 judicial decisions to come up with answers. In a piece for The Washington Independent, Sunstein wrote:

We investigated which members of the Supreme Court are the most partisan – in that they are more likely to vote in favor of conservative agency decisions than liberal ones. We wanted to see if some justices are more political in their voting patterns than others – and also learn something about how future administrations are likely to fare in the Supreme Court.

We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?

Our answers: Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.

Additionally, Sunstein argues that “partisan voting is a serious problem on the federal judiciary. If the EPA issues a regulation that is aggressive in cleaning air, or if the National Labor Relations Board resolves a dispute in favor of a union, a panel that consists of solely of Republican appointees is unusually inclined to strike it down.”

A large Latin cross on a hilltop in San Diego is not going anywhere anytime soon, regardless of the complaints from supporters of the First Amendment principle of the separation of church and state. U.S. District Judge Larry Alan Burns ruled earlier this week that the cross, part of a federally owned war memorial on Mt. Soledad, “communicates the primarily nonreligious message of military service, death and sacrifice. As such, despite its location on public land, the memorial is constitutional.”

Lawsuits challenging the 29-foot-tall cross, atop a 43-foot base, have been wending their way through the courts since the 1980s. In 2006, President George W. Bush signed a measure turning the land on which the memorial sits over to the federal government. The current lawsuit, brought by the American Civil Liberties Union of San Diego argued that the cross on public land represented an endorsement of religion in violation of the First Amendment. The San Diego ACLU, in a statement about Burns’s decision in Trunk v. City of San Diego, said an appeal was possible. David Blair-Loy, the ACLU affiliate’s legal director, told the Los Angeles Times that, “If you want to put a cross on your front lawn … we will be the first to defend you. When the government is sponsoring and endorsing the preeminent sysmbol of one religion, that’s when we have a problem.”

A federal judge ruled that Bush administration advisers must comply with subpoenas issued by Congress. Unless successfully appealed, former White House Counsel Harriet E. Miers and current White House Chief of Staff Joshua B. Bolten will be required to cooperate with the House Judiciary Committee’s investigation of the controversial firings of several United States attorneys.

The House has already voted to hold three of Bush’s advisers, including former top political adviser Karl Rove, in contempt for ignoring a subpoena. Marty Lederman, an associate professor of law at Georgetown, called the 93-page opinion by U.S. District Judge John D. Bates “an extraordinarily thorough, scholarly and thoughtful opinion – surely one of the best opinions ever written on questions relating to executive/congressional disputes.”

Lederman’s analysis of the decision is available on the blog, Balkinization.

by Shayana Kadidal, head of the Guantánamo project at the Center for Constitutional Rights

[This is the first half of an article examining Attorney General Mukasey’s recent call for Congress to enact legislation governing Guantanamo detainee’s habeas court proceedings. The second half will be published here.]

Attorney General Mukasey called for a third round of legislation to ensure that the federal courts will never force the Bush administration to explain why they have held our clients in Guantánamo for over six years. The first two rounds of legislation followed losses in the Supreme Court, in Rasul v. Bush and Hamdan v. Rumsfeld, and this recent push comes after yet another loss, in Boumediene v. Bush. Each Court decision repudiated the Bush administration’s attempts to keep Guantanamo detainees out of court.

Mukasey’s complaints and legislative proposals, outlined in a speech before the American Enterprise Institute and in testimony before Congress, are another attempt to drag us into years of further delays in these cases. This article examines his arguments, one-by-one, to go beyond the administration’s rhetoric.

Blog Posts

Shayana Kadidal, head of the Guantanamo Project at the Center for Constitutional Rights, on Attorney General Michael Mukasey’s renewed calls for Congress to pass legislation on detainees’ rights.

Sahr MuhammedAlly, senior associate with the Law and Security Program at Human Rights First reports from the military commission proceeding at Guantanamo Bay.

A summary of a new report by the Office of the Inspector General finding that aides to former Attorney General Alberto Gonzales used unlawful hiring practices, and a look at the Senate Judiciary Committee’s hearing on the matter.

A recap of Congress’s first hearing on the armed services “Don’t Ask, Don’t Tell” policy.

An overview of the House Judiciary Committee’s hearing to address the ongoing complaints over the Bush administration’s expansion of executive powers.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First. Yesterday’s post is available here; earlier reporting is available from Aaron Zissler and Frank Kendall.

Guantánamo Bay, Wednesday, July 30, 2008. On July 28, Navy Captain Judge Keith Allred, the military commission judge in Salim Hamdan’s trial, sanctioned the government for failing to share with the defense relevant discovery that provides new details about Hamdan’s more-than-six-years of confinement at Guantánamo. The government handed over 500 pages of documents to the defense just 12 hours before the July 21 start of the trial, despite multiple court orders and requests for discovery dating back to 2007.

Because his court order regarding discovery had been ignored, Judge Allred stated that he would presumptively exclude statements extracted from Hamdan’s May 2003 interrogation unless the government could show by clear and convincing evidence that the evidence is reliable and should be admitted in the interest of justice.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First. Earlier reporting is available from Aaron Zissler and Frank Kendall.

Guantánamo Bay, Monday, July 28, 2008. One of the contentious issues in the so-called “war on terror” is when did the “war” against al Qaeda start and when does it end?

Measuring the start of this “war” bears directly on the government’s efforts in the Guantánamo military commission proceedings to prosecute detainees for various acts the government claims were not simply crimes but in fact were acts in violation of the laws of war. And measuring its end bears on the government’s claim to be able to hold these Guantánamo detainees, even without charge or trial, until the conflict with al Qaeda – and possibly other groups as well – is over.

The Senate Judiciary Committee conducted a hearing this morning on recent government reports over the politicization of hiring at the Department of Justice during former Attorney General Alberto Gonzales’ tenure. A July 28 report by the Justice Department’s Office of Professional Responsibility (OPR) and Office of Inspector General (OIG) found that Gonzales aide Monica Goodling used political criteria in seeking to fill non-political positions within the Justice Department. According to the report, a highly qualified prosecutor applying for a counterterrorism position was rejected because his wife was active in Democratic politics. The report follows one issued by the offices on June 24 about the use of political considerations in hiring career attorneys and interns.  

In his opening statement, Leahy said the report from OPR/OIG confirmed “what I and others have suspected all along – that senior officials within the Department of Justice used illegal political and ideological loyalty tests in making hiring decisions for career positions that, by law and the Department’s own rules, are non-partisan. They broke the law. They did so as political partisans and cronies.”   

The hearing featured testimony from Glenn Fine, the Justice Department’s Inspector General. Before answering questions, Fine reviewed the findings of both the July 28 and June 24 reports from OPR/OIG. The June 24 report concluded that in 2002 and 2006, candidates for nonpolitical jobs in the Justice Department were rejected because of their affiliations with progressive organizations, including the American Constitution Society.

A new study tags the Bush administration’s strategy to defeat terrorism as inadequate. The study by the Rand Corporation, “How Terrorist Groups End: Lessons for Countering al-Qaeda,” argues that the administration strategy has failed to seriously harm al-Qaeda’s efforts to wage terrorist strikes because it has relied too heavily on the military instead of local police and intelligence efforts. Rand, a nonprofit research organization, stated in a press release about the study that Al Qaeda “has been involved in more terrorist attacks since Sept. 11, 2001, than it was during its prior history and the group’s attacks since then have spanned an increasingly broader range of targets in Europe, Asia, the Middle East and Africa.”

Seth Jones, the study’s lead author, said the United States cannot effectively stop terrorism “without understanding how terrorist groups end. In most cases, military force isn’t the best instrument.”

Most terrorist movements dissolve, the study argues, because of political action or through police and intelligence services either capturing or killing the movements' primary leaders.

The report was prepared by the RAND National Defense Research Institute, which is a federally funded research and development center that does work for the Office of the Secretary of Defense, the Joint Staff, the unified command and other defense agencies.

Massachusetts lawmakers are close to banishing a 1913 law prohibiting the recognition of same-sex marriages. The Massachusetts House voted 118 to 35 today to repeal the 1913 law. Earlier this month state senators approved a bill to repeal the law. The measure now heads to Gov. Deval Patrick, who, according to the Boston Globe, is expected to sign it. The repeal will allow out-of-state couples to marry in Massachusetts, which has recognized same-sex marriages since 2004. See ACS National Convention discussions on marriage equality here and here.

This week’s congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Of note: On Wednesday and Thursday, the House Committee on Armed Services will hear testimony on Implications of the Supreme Court’s Boumediene Decision for detainees at Guantanamo Bay, Cuba .  On Thursday, the House Committee on the Judiciary (Subcommittee on the Constitution, Civil Rights, and Civil Liberties) will hold a hearing on H.R. 5607, the “State Secrets Protection Act of 2008.”

A new Department of Justice report concludes that former high-ranking Justice Department officials improperly and repeatedly used political criteria in hiring career prosecutors and immigration judges.

The 140-page report by the U.S. Department of Justice Office of Professional Responsibility (OPR) and U.S. Department of Justice Office of the Inspector General (OIG) concluded, in part, that Monica Goodling, former Justice Department White House liaison, “improperly subjected candidates for certain career positions to the same politically based evaluation she used on candidates for political positions, in violation of federal law and Department policy."

Additionally the report concludes that Goodling’s “use of political considerations” in hiring for the Department was “particularly damaging to the Department because it resulted in high-quality candidates for important details being rejected in favor of less-qualified candidates.”

The Department’s former chief of staff, D. Kyle Sampson, was also named in the report as employing political considerations in hiring immigration judges. “The evidence showed that the most systematic use of political or ideological affiliations in screening candidates for career positions occurred in the selection of IJs [immigration judges], who work in the Department’s Executive Office for Immigration Review (EOIR).” Sampson told investigators for OPR and OIG that he thought IJs were “political appointees and therefore not subject to civil service rules.”

Today’s report follows one issued last month that revealed politics infused the hiring of career attorneys and interns in the Justice Department’s Honors Program and Summer Law Intern Program. In that OPR/OIG report, it was revealed that candidates affiliated with progressive organizations, including the American Constitution Society, were improperly rejected. ACS's comment on the report is available here.

Attorney General Michael Mukasey, in a statement issued about the report, said he has acted and “will continue to act, to ensure that my words are translated into reality so that the conduct described in this report does not occur again at the department.”

The OPR/OIG will issue separate reports on their investigation into the firings of nine U.S. attorneys in 2006.