Party Mixers

July 17, 2008 1:42 PM

Nebraska Republican Sen. Chuck Hagel may be joining Barack Obama on his fact-finding trip to the Mideast next week, but a bipartisan "Obama-Hagel" campaign is likely a "dream ticket" only in a Chuck Hagel nocturne.

"Take a look at the rules," suggested a Senate Democrat with a laugh. "The Party won't allow it."
And sure enough, the rules don't.

Despite the bipartisan ambitions of the candidates and dreams of many pundits, party rules of both the Democratic and Republican National Committees seem to ensure that neither Hagel nor Connecticut Sen. Joe Lieberman will be nominees for Vice President this year.

For the complete story of the rules that make a bipartisan ticket unlikely for either party, click here.

July 17, 2008 | Permalink | User Comments (1) | TrackBack (0)

McClellan: Condi a war criminal?

July 09, 2008 11:28 AM

My colleague Jake Tapper has just posted a rather astonishing  excerpt of an interview with former White House Press Secretary Scott McClellan, in which the former Bush loyalist-turned-critic says top administration officials may be guilty of war crimes for approving the “torture” of top al-Qaeda suspects.

This jaw-dropping admission came after Jake asked McClellan whether he ever said anything from the podium that he knew wasn’t true. McClellan said no, but then added that he’s come to believe he was wrong when he said, “we do not torture” and “we adhere to our international treaties” on detainee treatment.

"Whether or not it was illegal is a matter for other people to address, but I could not say honestly today that this administration does not believe in torture, does not engage in torture. Now, people within the White House continue to believe...that it’s not tantamount to torture. I just hold a different view today on that subject."

McClellan said he was relying on the limited information the administration gave him.

“Now, looking back on that, I hold a very different view, when I know today that we’re engaged in waterboarding and some other harsh interrogation methods,” McClellan said. “I would have never made those comments from the podium had I known exactly what was happening in some of those settings.”

Curiously, McClellan was, in fact, in the White House when the media began reporting that the CIA had used waterboarding as a technique. The New York Times first mentioned waterboarding in 2004, and in 2005, ABC’s Brian Ross was the first to report that the CIA had used it--and other harsh techniques--against al-Qaeda suspects. What’s new since McClellan left the White House in 2006 is official confirmation that waterboarding was used on three suspects, as well as some of the details—including our reports that high-level officials specifically approved those details in meetings in the White House Situation Room.

We reported that one of those officials who repeatedly and specifically approved harsh interrogations was Secretary of State Condoleeza Rice, who’s been mentioned in a few places as a possible VP pick for John McCain. That always struck me as a long-shot bordering on preposterous—not only is she one of Bush’s closest advisers, but she approved policies McCain opposed, including the use of waterboarding. Even if she were interested in the job, which she has said she’s not, Rice as Veep could backfire big time on McCain.

McClellan’s comments to Jake make clear what Rice would face on the stump. You’d have a presidential candidate who opposes waterboarding and has called it “torture” and a Veep-candidate who approved it in the Bush Administration—and, in doing so, may have committed “torture” herself, if we’re following McClellan’s argument here.

Now, McClellan did say he wasn’t offering up a legal opinion, but it’s clear he thinks the administration’s legal analysis was wrong (and continues to be, since the White House maintains waterboarding is legal).

There’s a big debate over that—but it’s probably not a debate McCain would like to have with his own VP. For a comprehensive look at the candidates' search for Veeps, click here.

July 9, 2008 | Permalink | User Comments (11) | TrackBack (0)

Kaine Spins Webb

July 08, 2008 11:36 AM

As our colleague Matt Jaffe reported on RADAR yesterday, in a statement, Virginia Gov. Tim Kaine spun the Jim Webb announcement by the junior Democratic senator that he won’t be a vice presidential contender as "good news for Virginia that he will continue to represent the Commonwealth in the U.S. Senate."   It’s especially good news for Governor Kaine too.  That’s because, now that former Governor Mark Warner has also taken himself out of the Veepstakes in favor of a Senate run, if the Obama’s campaign thinks Virginia is a potential help on the electoral map, Kaine would be the guy to deliver for them.  The young governor is popular in a state that could help make Obama make crucial inroads in the South.

For a comprehensive handicapping of the vice presidential selection process and how Kaine and Webb and Lieberman and Clinton and Bayh and Biden all fit into the complex calculus, click here.

July 8, 2008 | Permalink | User Comments (6) | TrackBack (0)

The Politics of Abortion

July 06, 2008 12:27 PM

I was going to write today about the story that has captivated my neck of the world for the past three days — one that's had us all talking about how this could have happened, what does it all mean, and what will the repercussions be. I'm referring to the case of Pat Dye's missing pants.

It's big news here in rural north Alabama and for good reason: Dye is the beloved former football coach at Auburn, and a local couple discovered his muddy madras pants at the lake. Since it's so dry here, the water levels are low--and the pants materialized in the mud. The couple picked them up and discovered Dye's car keys and wallet, which contained his drivers' license, credit cards, etc.—from 20 years ago.

Now, Dye doesn't remember how his pants, wallet and car keys ended up on the lakeshore—he doesn't even remember losing them (hey, it was 20 years ago!). And that's set off a round of speculating about what 'ol Pat was up to down there on Lake Martin.

It's been a splendid 4th of July story---one that perhaps only is equaled by the "Shock and Awe" that we set off Friday night in my folks' front yard. (Yes, that was the name plastered on the fireworks — which we bought at the cotton gin-turned-fireworks-stand in Hulaco -- and it lived up to the billing)

But as great as it is to be here in Alabama — with nonstop catfish, barbeque, homemade ice cream, biscuits (you get the point), I've been completely distracted by Sen. Obama's comments on abortion ---his own "Declaration of Independence" from the abortion rights groups? -- and I think I've finally put my finger on what's been bothering me.

For those of you who haven't seen my blog over the past couple days, I've been writing about Obama's startling comments that he would support post-viability abortion bans even if a woman were in "mental distress." He said there had to a "serious physical issue that arises in pregnancy" to justify those abortions.

That's a position expressed on the Supreme Court only by Justices Thomas and Scalia, and Obama's efforts yesterday to clarify those remarks left me confused. He said he would, in fact, support those abortions for some women: those with "serious clinical mental diseases" or, as his spokeswoman further clarified, "mental illness."

That, of course, could exclude most of the women today who seek post-viability abortions, which may or may not be Obama's point in embracing these new limitations.

This much is clear: His position is at odds with federal legislation he has co-sponsored to guarantee broad abortion rights, and it is at odds with his record, which has been strongly in favor of abortion rights--to the point that columnist Nat Hentoff called him the "infanticide candidate."

So what's going on?

I came across a report last night that offers a good explanation. Written nearly a decade ago by Cynthia Dailard for the Guttmacher Institute, a leading think tank on abortion and reproductive health, the report details how pro-choice politicians have long sought to use the "mental health" exception as a way of seeking "common ground" with voters on the Right.

Back then, the proposals seemed cost-free — politicians could offer up a restriction, knowing that even if it passed, a Supreme Court composed of four liberals and Justice Sandra Day O'Connor would strike it down. Of course, much has changed since O'Connor retired three years ago: Today's Supreme Court could well uphold these and many other restrictions.

In 1997, for example, then-Sen. Minority leader Tom Daschle (D-S.D.) proposed a then-clearly unconstitutional amendment to the so-called "partial birth" abortion ban that would have prohibited post-viability abortions for any woman with a mental health condition — no matter how severe.

Sen. Dick Durbin, (D-Ill.) offered an even more restrictive (and equally unconstitutional) proposal the following year—one that excluded women with mental health problems, but added the requirement that two doctors must approve the abortion before it could proceed.

So in some ways, Obama is carrying on a grand tradition of "sacrificing the mental health exception in order to appear reasonable in the context of the post-viability abortion debate," as Dailard put it. It's just a different time, with a different Supreme Court that could well not blink when faced with these restrictions today.

And there are, as the report makes clear, other consequences to opening this Pandora's Box. Again, these may be consequences Obama wants, but there's no question these proposals have had a broad effect on the abortion debate.

History shows that those proposals — offered and embraced by legislators who would call themselves "pro-choice" — have been seized by conservatives who oppose abortion. As Dailard wrote, the attacks on the mental health exception have had "significant repercussions beyond that significant issue, seriously reviving a legislative attack on abortion rights that largely has been dormant for two decades."

After Daschle and Durbin's efforts, leaders with the Center for Reproductive law and Policy issued a sharp retort, warning that they and other legislators were buying into the antiabortion movement's "devaluation of women's mental health."

Abortion opponents welcome this debate, which is at its most emotional and difficult when focused on those rare legal abortions after 22 weeks. Opponents have long argued that the mental health exception to those abortions was a huge loophole that make post-viability bans meaningless.

Doctors could always find a "mental health exception" to allow such abortions, they argue. What's more, they point out these are the most disturbing and objectionable of all abortions—those performed after the fetus would be viable, which is when the state's interest in fetal life is at its highest.

(Remember, that with advances in medical technology, the date of viability is much earlier than in 1973, when the Court decided Roe. So these issues have a much broader sweep than they did 35 years ago.)

Along those lines, the abortion rights groups have been equally forceful, saying the mental health exception is a critical---and constitutionally required—component of any abortion ban. They have argued that a woman's mental health is as important as her physical health—and that the debate, as Dailard says, should emphasize preserving "the gains made on behalf of people with mental illness and for women who may need abortions for legitimate mental health reasons."

Obama seems to be saying now that the only legitimate mental health reason would be mental illness. That's a departure. Perhaps this is a departure abortion rights groups have now decided to agree with—and here's hoping they weigh in when everyone's back in the office tomorrow. Perhaps it's a departure the Supreme Court now will endorse, since the Court, after O'Connor's retirement, no longer can be counted on to invalidate abortion restrictions.

Perhaps it's a restriction most Americans would support—as these exceptions tend to be most used by a narrow group of poor, young or uneducated women.

And certainly, Republican candidate John McCain has consistently supported even more draconian restrictions—to the point of saying Roe v. Wade should be overturned.

But I'd like to hear how Obama can continue to support the federal Freedom of Choice Act, which contains a broad mental health exception by specifically referring to the 1973 Supreme Court case that demands that any abortion ban contain an exception based on "all factors—physical, emotional, psychological, familial and the woman's age…all these factors may relate to health."

What is his bottom line? Is Obama still the legislator who has ardently and consistently opposed restrictions on abortion, even laws that would protect the life of an aborted fetus who happened to be "born alive." Is he now willing to support new restrictions on the right to abortion?

Or is he just playing politics with abortion in the tradition of Daschle, Durbin, et al., and again creating an issue for conservatives to seize—and one they might now win in the Supreme Court?

July 6, 2008 | Permalink | User Comments (53) | TrackBack (0)

Obama revisits abortion

July 05, 2008 7:31 PM

We've gotten a response from Sen. Obama on his comments this week that he would support a ban on abortions after 22 weeks--even if a woman sought the procedure because she was in "mental distress." Obama told a Christian magazine, Relevant, that only women with a "serious physical issue" should be able to get an abortion post-viability.

As I wrote yesterday, that's contrary to 35 years of Supreme Court jurisprudence on the issue, which has always demanded that abortion bans contain an exception to allow the procedure to protect a woman's "mental health," as well as her physical health. Only Justices Thomas and Scalia have expressed the view that a "mental health" exception is not required.

Today, Obama tried to explain what he meant. I'm going to print his response in its entirety, because he's trying to walk a very fine line on what is one of the most divisive—and deeply felt—issues in America today.

In clarifying his remarks, Obama said this afternoon that he has "consistently" said health exceptions are required for laws banning or seriously restricting abortion. But he then goes on to try to carve out exceptions to the exceptions, and he ends up suggesting, again, he would support more limits on abortion than the law currently allows.

Speaking to reporters on his campaign plane, Obama said mental health exceptions—which are a real battleground issue in the abortion debate--can be "rigorously" limited to only those women with "serious clinical mental health diseases." He said mental health exceptions are not intended permit abortions when a woman simply "doesn't feel good."

"It is not just a matter of feeling blue," Obama said.

Here's the problem with that, and why Obama's remarks are so startling.  Obama is trying to restrict abortions after 22 weeks to those women who have a serious disease or illness. But the law today also covers some women who are in "mental distress," those women who would suffer emotional and psychological harm without an abortion.

 

This standard has long been understood to require less than "serious clinical mental health disease."  Women today don't have to show they are suffering from a "serious clinical mental health disease" or "mental illness" before getting an abortion post-viability, as Obama now says is appropriate.

And for 35 years—since Roe v. Wade—they've never had to show that.

So Obama, it seems to me, still is backing away from what the law says—and backing away from a proposed federal law (of which he is a co-sponsor) that envisions a much broader definition of mental health than the one he laid out this week.

That proposed federal legislation, the Freedom of Choice Act, refers to the key Supreme Court case on the issue, which was decided the same day as Roe v. Wade in 1973.  In that case, Doe v Bolton, the Court said a doctor could decide to perform an abortion based on "all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health."

Subsequent cases in the Supreme Court and lower courts have said states cannot ban abortions where the doctor deems them necessary to protect a woman's physical and mental health. Lower courts have taken that to mean a state cannot prohibit an abortion—even one post-viability--if the woman would suffer severe emotional harm without it.

 

Nowhere do those cases impose criteria of "serious clinical mental health diseases."

That's not what the law is today. The Court has said the Constitution prohibits states from banning post-viability abortions unless those laws contain a broad mental health exception---one that includes mental distress and severe emotional harm. Abortion rights groups have fought for decades to preserve these exceptions, and I'm awfully curious what they will think about limiting them to women with mental disease or mental illness. (A good question for Monday, when we're all back in the office.)

Now maybe the law will change--now that Justice Sandra Day O'Connor is no longer on the Supreme Court.  On this issue, Obama seems to be suggesting it should.

Here's his response:

"My only point is this-historically I have been a strong believer in a women's right to choose with her doctor, her pastor and her family," Obama said. "I have consistently been saying that you have to have a health exception on many significant restrictions or bans on abortions, including late-term abortions.

 

"In the past, there has been some fear on the part of people who--not only people who are anti-abortion, but people who may be in the middle--that that means that if a woman just doesn't feel good then that is an exception.  That's never been the case.  I don't think that is how it has been interpreted.

"My only point is that in an area like partial birth abortion having a mental, having a health exception can be defined rigorously," Obama continued.

"It can be defined through physical health. It can be defined by serious clinical mental health diseases.  It is not just a matter of feeling blue. I don't think that's how pro-choice folks have interpreted it.  I don't think that's how the courts have interpreted it and I think that's important to emphasize and understand."

July 5, 2008 | Permalink | User Comments (50) | TrackBack (0)

Obama: Sounding Like Thomas and Scalia?

July 04, 2008 12:34 PM

The Supreme Court fired a shot last week that ricocheted into the political campaign when it struck down a Washington DC law that banned people from owning handguns. For the first time in history, the justices said the Constitution's 2nd Amendment protected an individual's right to keep and bear arms.

The decision was 5-4 and, as we've seen on contentious social issues, divided the justices along ideological lines. In this case, the conservatives opposing the gun ban carried the day. Liberals ended up in bitter dissent.

But here's the curious thing: both presidential candidates — Republican John McCain and Democrat Barack Obama — praised the conservatives' position. The same thing happened the day before in another sharply divided 5-4 case over whether states can execute people who rape, but do not kill, children. This time, conservatives lost, but again McCain and Obama were on the same side, blasting the liberals' decision striking down laws that allowed the death penalty for child rape.

You'd expect McCain to take those positions.  He has, after all, promised to nominate justices like Roberts, Alito, Scalia, Thomas. But on two of the biggest social controversies to reach the Court this year, Obama, too, sided with conservatives -- rejecting opinions by the liberal justices who, presumably, are of the kind he would appoint if elected President.

But that's nothing compared to Obama's most recent comments about the most controversial social issue of them all: abortion.

In a recent interview, Obama appears to back away from his long-stated positions on abortion (and a proposed federal abortion rights law he had co-sponsored), repudiate 35 years of accepted Supreme Court rulings on the issue and embrace a view on abortion restrictions that has been expressed on the Court only by Justices Thomas and Scalia.

Obama's remarks are printed verbatim in the interview, published yesterday in Relevant Magazine. Read them  — there's no mistaking that Obama says he no longer will support what's long been a cornerstone of the abortion rights debate: The Court's insistence that laws banning abortions after the fetus is viable (now about 22 weeks) contain an exception to allow doctors to perform them if necessary to protect a pregnant woman's mental health.

'I have repeatedly said that I think it's entirely appropriate for states to restrict or even prohibit late-term abortions as long as there is a strict, well-defined exception for the health of the mother. Now, I don't think that 'mental distress' qualifies as the health of the mother," Obama said. "I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term. Otherwise, as long as there is such a medical exception in place, I think we can prohibit late-term abortions."

Wow.

This has been a central battleground issue in the Supreme Court going back 35 years, to Roe v. Wade and Doe v. Bolton, when the Court ruled a woman had a constitutional right to abortion. The decisions said state's can ban all abortions after the fetus is viable -- but that any restrictions must include exceptions to protect a woman's physical and emotional health.

In the years since, anti-abortion groups have fought hard against mental health exceptions, arguing that they create giant loopholes that make abortion bans meaningless. Doctors, they argue, can always find a "mental health" exception. But abortion rights groups just as strongly argue the mental health exception is critical to preserving a woman's right to an abortion—and that the woman and her doctor must be allowed to make those decisions about her health without government interference.

In 1973, when the Court issued Roe and Doe — on the same day — it sided with the abortion rights groups and said states could not interfere with a doctor's medical judgment on whether an abortion was necessary.

"[M]edical judgment may be exercised in the light of all factors--physical, emotional , psychological, familial, and the woman's age--relevant to the well- being of the patient," said the Supreme Court in Doe, which was a companion case to Roe. "All these factors may relate to health . This allows the attending physician the room he needs to make his best medical judgment."

Obama's comments that he does not support mental health exceptions in so-called post-viability abortions (after 22 weeks) is squarely at odds with that holding, which remains the law of the land today.

Current Supreme Court jurisprudence is understood by lower courts to prohibit those flat-out bans unless the laws provide exceptions for a woman's mental health. Lower courts repeatedly have struck down laws that only provide an exception for serious physical issues as being contrary to Supreme Court precedent.

As an Ohio-based federal appeals court recently put it, "States must provide a maternal health exception to an abortion ban that encompasses situations where a woman would suffer severe mental or emotional harm if she were unable to obtain an abortion."

Indeed, only Thomas and Scalia have expressly supported the position that a mental health exception is not necessary. They penned a dissent to that effect in 1998, when the Court refused to take up the Ohio case that struck down a state law because it did not include an exception to protect a woman's mental health.

And last year's case upholding a federal law that banned a specific type of abortion procedure — so called "partial birth" abortion — doesn't change the analysis. It was the first to allow the government to ban a specific type of abortion procedure. And it was the first to allow that ban without an exception for a woman's mental health.

But that case focused only on one type of abortion procedure -- not an outright ban of all abortions after viability. And even there, the Court refused to rule out "partial birth" abortions in specific cases where a woman can show her mental or physical health requires it.

That case was immediately and harshly criticized by abortion rights groups across the spectrum — as well as by Obama, himself. He said last year that the decision "dramatically departs from previous precedents safeguarding the health of pregnant women."

Here's how Planned Parenthood President Cecile Richards explained it:

"The U.S. Supreme Court's ruling yesterday in this case represents a seismic shift for the Supreme Court and the nation. With new Bush appointees, this court has unraveled more than 30 years of precedent protecting women's health," Richards said. "For the first time, the court told women that, when their health is at risk during pregnancy, deciding what to do is no longer up to them and their doctors, it is instead up to politicians.  The future of legal access to abortion in this country is grim."

Richards made her remarks the same day Congress introduced federal legislation to preserve a broad right to an abortion -- including where necessary to protect a woman's mental health.

Said Richards at the time: "It's time for Congress to stand up for women's health, women's safety, and a woman's right to make her own medical decisions. American women deserve the protection of federal law to preserve their right to make personal health care decisions free of government intrusion. We call on Congress to pass the Freedom of Choice Act."

The Freedom of Choice Act specifically allows abortions after viability where necessary to protect a woman's health, and the legislation refers repeatedly to the guarantees of Roe and Doe, which protect the right to an abortion where necessary for a woman's physical and mental health.

One of its co-sponsors? Barack Obama.

So here are some questions for the Obama campaign: Does Obama still support the Freedom of Choice Act? Would he appoint justices like Ginsburg — or like Thomas, Scalia, etc.? Would he direct his Solicitor General to file a brief supporting state abortion bans that did not include a mental health exception?

And questions for the McCain campaign: How can you criticize Obama for allegedly shifting positions when McCain himself is reportedly considering as a running mate Mitt Romney -- a man whose shifting views (from pro-choice to pro-life!) — make Obama seem fixed in concrete?

I've asked both campaigns for answers, so I'll update when I hear back. In the meantime, Happy 4th!

July 4, 2008 | Permalink | User Comments (133) | TrackBack (0)

KSM in the "hood"

July 03, 2008 5:49 PM

No less than White House spokeswoman Dana Perino gave voice to the extreme nightmare scenario that Bush administration officials fear could be the outcome of the Supreme Court’s five to four opinion in Boumedienne v Bush late last month: “It is possible that some of these detainees, after challenging their detention in court, could be released into the United States,” Perino told reporters.  “I’m sure that none of us want Khalid Sheikh Mohammed walking around our neighborhoods.”   In his blistering dissent, Justice Antonin Scalia sounded an even more ominous warning: “It will almost certainly cause more Americans to be killed…The Nation will live to regret what the Court has done today.”

The decision has erupted into an urgent series of high level discussions from the White House to the Pentagon, Justice and State Departments.  The talks are focused on immediate recommendations on how to come to terms with a decision that dramatically alters the legal landscape and potentially the very future of the U.S. prison at Guantanamo Bay, Cuba where 260-some al Qaeda detainees are still incarcerated--including KSM, Abu Zubaida and USS Cole bombing suspect Abdullah al Nishiri.

For more details about the on-going White House discussions about the practical and legal problems Bush officials are grapping with in the wake of last month’s ruling, read Closing Gitmo: Timing is Everything by clicking here.

July 3, 2008 | Permalink | User Comments (14) | TrackBack (0)

Detainees to be freed in the U.S.?

July 03, 2008 12:37 PM

As high-level discussions continue over the future of Guantanamo as a prison for al-Qaeda suspects, administration officials also are focusing on how to handle detainees who prevail in federal court and are ordered released from prison.

The administration fully expects the federal courts--which now must hear the prisoners' claims in the wake of last month's Supreme Court ruling--to order some of those GTMO detainees freed, senior officials say.

Lawyers for the detainees say that's because many should never have been imprisoned. The administration says that's not true--and that the problem stems from how the soldiers and CIA officers collected evidence on the battlefield and wrote it up, never expecting it to be used in litigation in a federal court.

Either way, both sides expect some detainees to be set free. And that raises a huge question: What to do with them?

The issue came up in today's White House briefing. Here's Dana Perino:
"One of the real implications of this decision that the Supreme Court made is that these detainees, if and when they challenge their detention in court, could be released into the United States."

She continued: "That's exactly what that decision said. That's one of the real implications. Because if they challenge their detention in DC district court, which is what the Supreme Court said they should do, and they're found to be held, that there's not enough evidence to hold them, they can then be released, free."

"That's one of the reasons that we have all of these very complicated questions that are unanswered," she said. "And that's one of them, the immigration piece of it, and what do you do?"

The district courts here are scrambling with how to handle all these detainee petitions (250 or so now filed). The Justice Department has asked for 30 more lawyers from US attorneys offices across the country to volunteer to come here and help out. Some 20 attorneys in the Justice Department have already been reassigned to these cases.

It's all because the Court said these detainees had a constitutional right to challenge their detentions in federal courts. And now, of course, they are.

If the courts find there's not enough evidence to hold them, they'll order their release. But to where? It's potentially a huge problem because the government says it can't find countries to accept the detainees--and under international law, it can't send them to countries where they'd be subjected to torture.

Here's the immigration issue: Just because the detainees are ordered released doesn't mean they have a right to legally be here in this country. But the government can't hold indefinitely aliens who don't have a lawful basis for being here. That's why Congress likely will have to get involved on the immigration issue and decide how it may be able to carve out something for these detainees who are in this no-man's land.

This is a separate issue from where to put detainees the courts say are properly held. That's also a potential issue for Congress if President Bush decides--as most officials and both presidential candidates agree--there's no point to GTMO anymore.

July 3, 2008 | Permalink | User Comments (22) | TrackBack (0)

Bush to Close Guantanamo?

July 02, 2008 7:06 PM

President Bush will soon decide whether to close Guantanamo Bay as a prison for al-Qaeda suspects, sources tell ABC News. High-level discussions among top advisers have escalated in the past week, with the most senior administration officials in continuous talks about the future of the prison camp at Guantanamo Bay--and how it will be dramatically changed and/or closed in the wake of the Supreme Court's ruling that gave detainees there access to federal courts.

Sources have confirmed that President Bush is expected to be briefed on these pressing GTMO issues--and may reach a decision on the future of the naval base as a prison for al Qaeda suspects--before he leaves for the G8 on Saturday. An announcement, however, is not expected before he leaves the country.

High-level administration officials say the Court's decision dramatically changes the legal landscape--and raises questions about whether the government has solid evidence to present to federal judges to justify ongoing detentions.

That evidence, much of it classified and obtained by military and CIA personnel on the battlefield, is not the standard kind of proof judges are accustomed to seeing in regular criminal cases here, administration officials say. The documents do not contain the kind of detail—or include sources of that information—that’s typical in criminal cases, sources say.

Late last month for example, a federal appeals court in Washington said the government failed to prove its case with one detainee from China. The administration fears that's a sign of things to come—in light of the Supreme Court’s ruling giving other detainees even broader habeas corpus rights to challenge their detentions in court, sources tell ABC News.

Of course, there is generally wide agreement--from Defense Secretary Robert Gates, Secretary of State Condoleeza Rice and even Bush himself--that GTMO should eventually be closed. But the Court ruling could well hasten that move, since it undercuts the main reason to keep the detainees there. A key reason for imprisoning the detainees at GTMO in the first place was the belief that they would not have access to the courts, since they were not on U.S. soil. 

The recent discussions---which have involved numerous meetings with the most senior advisers to the President--the Principals--are about how to handle the some 260 detainees still imprisoned at GTMO. Should they be brought to the United States, and where, of course, to put them if they are to be imprisoned in this country?

Bush has not decided whether he will announce that GTMO should be closed, sources say. But at the very least, sources say, he will soon announce a host of these legal and policy changes that will force Congress to come up with a solution--including where to imprison those detainees if GTMO does, in fact, shut its doors.

July 2, 2008 | Permalink | User Comments (223) | TrackBack (0)

A "Flaw" in the Child Rape Case?

July 02, 2008 11:12 AM

The controversial decision outlawing the death penalty for child rape has taken a bizarre turn. Today’s New York Times has a Page One story by Linda Greenhouse that the Court -- and the lawyers on both sides -- failed to realize the military recently began allowing executions for child rape. The error was first noted in a military law blog.

The omission seems noteworthy because the Court's decision turned on the relatively small number of states (six) that had allowed capital punishment for child rape. In striking down those laws last week, the Court concluded that since so few states allowed the death penalty for child rape, society had made a judgment that it violated "evolving standards of decency."

Now, as the NYT points out, there apparently is a 7th jurisdiction--the military—that also had allowed it. Lawyers for both sides said they had no idea, and their papers filed in Court did not mention it.

Congress amended the Uniform Code of Military Justice (UCMJ) in 2006 to make child rape specifically punishable by death, and the new provision took effect in October 2007. The change was part of a lengthy revision to the code’s provisions on sexual assault against children.

But it garnered no press attention, and the lawyers involved in the child rape case---who are among the top lawyers in the country---said they didn’t know about the change.

“It seems to have provoked essentially no public commentary,” said Ted Cruz, the former Texas Solicitor General who defended the laws. “Each of the states that adopted these laws did so after extended public debate, considerable press attention and coverage. When this was adopted, it did not provoke any such controversy.”

But as bizarre as this is--and people I talked to this morning can't remember anything similar--it's the kind of oddity that won't change the outcome of the case. There are lots of reasons for that---but perhaps the most important one is that the Court has not considered the military in its death penalty jurisprudence over the past 30 years.

In 1977, the Court struck down the death penalty for adult rape and had a lengthy discussion in its opinion about what states had allowed it. Although the military was one of the jurisdictions that, at the time, also had allowed the death penalty for rape, the Court didn’t mention the military or the Uniform Code of Military Justice in its decision. It only referred to the federal crime of rape by civilians on US territories or military installations.

The Court also didn’t discuss the military in subsequent rulings about the death penalty for juveniles or people with mental retardation.

"The UCMJ has not been a part of the Supreme Court's cruel and unusual punishment analysis in death penalty cases," said David Bruck, a law professor at Washington & Lee University who is an expert on the federal death penalty. "Taking this long-forgotten and inactive shred of military law into account in (the child rape case) would not have affected the result."

Moreover, the current military code still provides the death penalty for adult rape—despite the Court’s 1977 ruling that it was unconstitutional. Last year’s revisions to the Code simply make child rape specifically punishable by death---bringing that crime into line with adult rape.

At any rate, all this is to say it's not the kind of thing that is likely to cause any of the justices to change their minds about the case--after all, 44 states and the federal government (aside from the military) don't allow the punishment.

But the omission, as trivial as it may be, nonetheless has raised lots of questions. Some of the country's top lawyers today are asking themselves how they--and the nation's top judges and their very bright law clerks---didn't realize the military code had recently changed to specifically allow death for child rape.

July 2, 2008 | Permalink | User Comments (17) | TrackBack (0)