Injudicious Behavior

by pessimist

The Constitution created the judiciary as the watchdog over the activities of the executive and legislative branches. The ruling of Marbury vs Madison established that principle as precedent. But to paraphrase the question the Roman poet Juvenal once asked, "Who judges the judges?"

There was a lot of commentary earlier this year over the appearance of impropriety when 'Justice' Antonin 'Nino the Nazi' Scalia engaged in personal interaction with Halliburton pResident of Vice Richard 'F-YOU!' Cheney withing weeks of the Supreme Court of Corporate Appeals was to hear a case which involved Cheney attempting to hide evidence of misfeasance (to be generous) and/or malfeasance (far more likely) sought by investigators connected to the Enron scandal.

If it looks like a duck, and sounds like a duck, ...

Packing the courts with friendly faces is an old political practice, and has been done by both parties. Franklin Roosevelt attempted to increase the size of the Supreme Court in order to keep some of his Depression-Era legislation from being found un-Constitutional.

But the majority of court-packing has been done by the conservatives of this nation, beginning with Richard Nixon, continuing through Ronald Reagan and Poppy Bush to the current Day of the Corporate Jackals.

It is said that He Who Makes The Gold Makes The Rules - and the courts are more likely to find for fiscal fatcats than they are for justice under the law. Who you are, and which party you belong to, determines whether the ruling is for you or against you - and the law be damned.

Unstable Rules

When Hillary Clinton wanted to keep secret the proceedings of her health care task force in 1993, the courts drew an important legal line. The U.S. Court of Appeals for the D.C. Circuit wrote if people who were not government employees were effectively acting as members of the group, federal law required certain disclosures. What's more, groups suing the task force to get access to its proceedings were entitled to discovery to find out what role those outside figures were actually playing.

Yesterday [June 23, 2004] the Supreme Court decided the case of Vice President Cheney's energy policy task force -- a case most famous for Justice Antonin Scalia's duck hunt but one that deals with the same law as the health care task force litigation a decade ago. The court said, in essence, that the White House is owed more deference than the D.C. Circuit showed it in either case; without quite saying so, it seemed to instruct the lower court to review its precedent. The decision is a partial win for Mr. Cheney, who gets to keep the task force's records secret while litigation continues.

But it also casts the courts in an odd light, for the rules appear to be suddenly different for the Bush administration than they were for its predecessor.

The Clinton administration was subjected in a range of cases to intrusive discovery that, it frequently complained, burdened executive confidences. The Supreme Court okayed personal sexual harassment litigation against the president with blithe disregard for its potential impact on the presidency. Now, by contrast, the high court bends over backward to emphasize, even at the risk of tension with its own precedents, the president's special needs in fighting off lawsuits. In this case, it goes so far as to allow an extraordinary appeal procedure to make sure those needs get accommodated. Ms. Clinton is entitled to wonder why the rules seem so unstable.

There are procedural differences between the cases that can at least partly explain the difference in outcome. Most notably, the Supreme Court was never asked to review the health care case, so this is really its first look at the principle the D.C. Circuit articulated then. And judges may feel uncomfortable now with the degree to which they encumbered President Bill Clinton's administration.

Yet it is critical that the courts, having articulated rules for one administration, follow those rules for others.

Few things can more damage public confidence in apolitical courts than if the principles that guide relations between the presidency and judiciary seem to shift based on the solicitude of judges for the incumbent administration.

Public confidence has already been damaged. It has been apparent for several years now that the courts are little more than an offshoot of the radical neo-con Republican Party machine. It wasn't for nothing that conservatives fought bitter battles getting their handpicked minions named to the bench!

Editorial: Cheney's high court

Unfortunately, the decision of the U.S. Supreme Court to permit Vice President Dick Cheney to keep secret the records of his energy task force meetings came as no great surprise. The willingness of the court to allow Justice Antonin Scalia to take part in the deliberations - despite the fact that Scalia has a 30-year friendship with Cheney and recently accompanied him on a duck hunting trip - gave a pretty good indication that this court would rather serve the private interests Cheney seeks to protect than the public interest.

While there are still legal issues to be resolved regarding Cheney's secrecy, the court's decision is disappointing. The 7-2 ruling allows Cheney to continue to refuse to release notes, memos and other documents of his behind-closed-doors meetings with energy industry insiders, such as Enron CEO Ken Lay. It also makes it harder for congressional and media investigators to piece together the full story of how Cheney and his aides manipulated the energy task force's recommendations to serve the interests of Enron and other big energy firms.

Sufficient information is available to conclude that the process was corrupted by the coziness of Cheney, the former CEO of Halliburton, with Lay and other energy industry insiders. That ought to shame Congress into rejecting the energy agenda, and into continuing efforts to expose any and all wrongdoing related to the task force.

As for the court, it has again proven itself to be the tragic branch of the federal government. Established by the founders to keep watch on the executive and legislative branches, it has in recent years appeared to be little more than a rubber stamp for the executive branch when it comes to issues of secrecy and oversight. And, as the Scalia scandal indicates, it is, as well, far too friendly with the Bush administration.

But why should anyone be surprised by that? After all, this is the court that, with the shameful decision to shut down the Florida election recount of December 2000, cleared the way for this president and vice president to take office.

'Justice' Antonin Scalia isn't the only 'justice' who doesn't know the meaning of the word!

Rehnquist, Cambodia & Abu Ghraib

It is April of 1970. President Richard Nixon, frustrated with the Vietnam War, orders tens of thousands of US and South Vietnamese troops to invade neutral Cambodia. He launches his new war--and widens his bombing campaign--without consulting an outraged Congress. Aides to National Security Adviser Henry Kissinger quit in protest. And at the Justice Department, an assistant attorney general named William Rehnquist, in charge of the Office of Legal Counsel, makes a case for the legality of Nixon's new war in a white paper, "The President and the War Power."

It is half a lifetime from that spring to this one, and half a world from Cambodia to Iraq. The historical chasm abruptly collapsed, though, with the release of the memo on torture written for the White House in August 2002 by Assistant Attorney General Jay Bybee, Rehnquist's latter-day successor at the Office of Legal Counsel.

What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy. The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive.

The memo proposes so finessed and technical a reading of antibrutality laws that all manner of "cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners.

(How exculpatory is the Bush Administration's self-serving document dump? Not a single page is concerned with prisoners in Iraq. Not one sentence refers to the CIA, which according to Seymour Hersh first employed coercive interrogation in Afghanistan with the acquiescence of Defense Secretary Donald Rumsfeld. Indeed, the most substantial and authoritative Pentagon document declassified by the White House, the April 4, 2003, "Working Group Report on Detainee Interrogations in the Global War on Terrorism," explicitly limits its scope to "DOD personnel in DOD interrogation facilities." Contract interrogators and CIA operatives are nowhere covered; neither are prisoners held under the authority of foreign governments, paramilitary allies or US intelligence agencies.)

Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee's most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to "detentions and interrogations of enemy combatants pursuant to [Bush's] Commander-in-Chief authority."

Nowhere in the Constitution do the Founding Fathers give any such absolute power to the pResident, no matter how much these bastards torture the law. Checks and balances isn't just a quait term for the history text books. It was established so that such a situation could not arrise. I personally blame the corruption of the intentions of the Founding Fathers by partisan party politics by officholders seeking increased power and influence through self-interest over the public good. George Washington tried to warn us in his Farewell Address about this danger and we didn't listen. Now we get to pay for the Sins of our Favoratism.

All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee's precise language.

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today's Patriot Act.

This is why Reagan named Rehnquist to be the chief Justice - to see that such totalitarian practices would survive any legal challenges brought before the Court. The rights of Might must not be impeded in any way, as these feeble attempts at limiting Nixon's excesses attest:

The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

This is what is really at stake in the torture scandal. The circle of history has come around: The Bush Administration's theory of unconstrained war powers connects straight back to its Nixonian origins.

Sometime in the coming few days, William Rehnquist will be among the Supreme Court Justices ruling on the Guantánamo Bay detentions and the designation of American citizens as enemy combatants. However he and the Court rule, his career-long crusades, rooted in the Nixon presidency, on behalf of gloves-off policing practices and executive-branch warmaking prerogatives now come together in a Baghdad prison.

The Bush Administration's memos not only facilitate torture as public policy. Like the Nixon Administration in 1970, they articulate a philosophy of the presidency best described as authoritarian. That is the hidden message of Abu Ghraib.

These anti-American activists demanded coverage under the Fourteenth Amendment 'Equal Protection' clause to ensure their theft of the Election of 2000 would stand. But just how willing would they be to apply that same principle to those it was intended to protect?

Loitering law hits homeless

The homeless and downtrodden who are habitual offenders of loitering laws may be locked up for six months under one of 19 bills Gov. Jeb Bush signed on Wednesday. [June 23,2004]

The law was aggressively sought by Jacksonville legislators and the Duval County sheriff in anticipation of the 2005 Super Bowl. The measure lets them clean up their streets by allowing judges to send anyone convicted of five misdemeanors in a 12-month period to six months in jail or a residential treatment facility.

One will note that it isn't defined as to which misdemeanors would 'count' under this 'law'.

Critics of the bill, including Rep. Dan Gelber, a Miami Beach Democrat, and Miami-Dade County Judge Steve Leifman, say that it is intended to target the most powerless of society and could lead to potential crowding of jails across the state.

Bush dismissed the criticism, saying the impact of jailing habitual offenders will be "negligible." He cited an analysis by the Office of the State Courts Administrator last year that found there were only 931 offenders statewide who had been convicted of five misdemeanors within 12 months. "Spread out over the entire state, this number does not appear sufficient to cause jail overcrowding," Bush wrote in a letter to Secretary of State Glenda Hood. "And because the bill provides for alternative sentencing, it is unclear what portion of the 931 eligible offenders would actually face jail time."

Of course, Jebbie isn't going to discriminate - or will he?

The governor also signed legislation that increases athletic fees paid by students attending state universities in South Florida and endorsed an act that prohibits condominium boards from passing rules that prevent condo owners from renting their homes.

The athletic fees legislation allows Florida Atlantic University and Florida International University to raise fees up to $2 per credit hour, or up to $60 a year for full-time students. And, for the first time, recipients of Bright Futures scholarships may not use their scholarship money to pay for the fee hike.

The condominium bill was enshrined into law by Bush along with a provision that allows condo purchasers to have access to a buyer-beware disclosure form. The law also creates a state condominium ombudsman and an advisory council to help resolve disputes between owners and condo boards.

I guess the answer to 'Will Jebbie discriminate?' comes down to 'Are you a property owner?" If you are, then he's on Your Side. If you are a college student, and on scholarship besides, then you are to be further burdened under the law. So much for 'Equal Protection' - to Jebbie it's Equal Protection for the Wealthy.

The governor also signed legislation to allow the state to crack down more aggressively on Medicaid prescription drug fraud. The measure gives the state broader prosecution powers against buyers and sellers of prescription drugs paid for by Medicaid.

Screw those retirees! They cost more than they pay in taxes! They should just die off and decrease the surplus poor population!

Because the Supreme Court is, under the law, the ultimate authority on the law, and as long as it is under the control of anti-American fascists like Rehnquist and Scalia, the best Americans can expect from their courts is a delaying action, until a time comes when more moderate justices can be named to the bench and bring the courts back to interpreting the law instead of wreaking it. Case in point:

US court keeps stay on media rules

A U.S. appeals court refused on Thursday to allow loosened federal media rules on media ownership to take effect, dealing a blow to large media companies like News Corp. that are hoping to expand. The U.S. Court of Appeals for the Third Circuit said the new rules would not take effect until the Federal Communications Commission better explained how it came up with them. "The Commission has not sufficiently justified its particular chosen numerical limits for local television ownership, local radio ownership, and cross-ownership of media within local markets," the court's 218-page opinion said.

The FCC last year lifted a ban on a company owning both a newspaper and television stations or radio outlets in a single market. It also agreed in many cases to allow a company to own two television stations in a single market. The FCC said it eased the rules to help broadcasters compete against pay television services. But opponents fear the rules would only allow media conglomerates like Tribune Co. and News Corp. to grow even bigger to the detriment of local news reporting and diverse viewpoints.

Opponents cheered the ruling. "Clearly, the court found that the FCC's previous studies were inadequate and lacked credibility," Democratic FCC commissioner Michael Copps said in a statement.

Andrew Schwartzman, a lawyer for Prometheus Radio Project who filed the lawsuit, said the court had ordered the FCC to "take the deregulatory thumb off of the scale."

"It looks like the court agreed with us that preserving democracy is more important than helping big companies grow bigger," Schwartzman said.

Preserving democracy. The time grows shorter as the need grows. Democracy, like most other endangered species, is in serious danger. It's time that WE, The People got back to our patriotic duty and paid attention to our rights and freedoms before they are lost forever. Let's not allow the Grand Old flag and all it represents become the butt-wipe rag of the multinational corporate fascists who seek to (ex)terminate the Great Experiment in Liberty and Justice For All.

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