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Journal Archives

The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Nomination to First Circuit: David J. Barron

On September 24, 2013, President Obama nominated Barron to serve as a United States Circuit Judge of the United States Court of Appeals for the First Circuit, to the seat vacated by Judge Michael Boudin, who took senior status on June 1, 2013. On January 16, 2014 his nomination was reported out of committee and is now pending before the full U.S. Senate

Barron is known for coauthoring (with Martin S. Lederman) a Harvard Law Review article titled "The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine and Original Understanding," Harvard Law Review, Vol. 121, Pg. 689, January 2008, which was an attack of the advice given by the Office of Legal Counsel to President George W. Bush justifying Bush's use of executive power during the War on Terror.

The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Article by David J. Barron & Martin S. Lederman

Jan 1, 2008

121 Harv. L. Rev. 689

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent”ť power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.”ť Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

remainder: http://harvardlawreview.org/2008/01/the-commander-in-chief-at-the-lowest-ebb-ae-framing-the-problem-doctrine-and-original-understanding/

Indyk vs. Indyk

by Jamie Stern-Weiner | published May 12, 2014 - 11:31am

Israelis and Palestinians share responsibility for the collapse of Middle East peace talks. That was the message delivered on Thursday by US special envoy to the peace process Martin Indyk, in a speech to the Washington Institute for Near East Policy (WINEP). Israel issued tenders for 4,800 settlement units during the talks, he noted, while on the Palestinian side, accession to international treaties and reconciliation with Hamas had been “unhelpful” to US efforts to rescue an already faltering process.

More generally, Indyk argued, the parties’ lack of any “sense of urgency” made it impossible to bridge the gaps between them. Israeli politicians and their constituents were in no rush to abandon a “comfortable status quo,” while Palestinian officials found it “easier” to “appeal to international bodies in their supposed pursuit of ‘justice’ and their ‘rights’” than to “make the gut-wrenching compromises necessary to achieve peace.”

As a diagnosis of the talks’ collapse, Indyk’s speech flattered Israel. As unnamed “senior American officials” -- Indyk apparently among them -- had explained to veteran Israeli journalist Nahum Barnea earlier in the week, the negotiations were not derailed by “both sides.” The “primary sabotage,” they insisted, “came from the settlements.” Far from lamenting the Palestinians’ evasion of necessary compromises, the officials listed Palestinian President Mahmoud ‘Abbas’ many concessions, including on issues at the core of the conflict. Whereas Indyk’s speech credits Israeli Prime Minister Benjamin Netanyahu with having displayed a measure of “flexibility,” the officials made clear that Netanyahu at most, and at the last minute, and only in reference to his own extremist positions, budged an “inch.”

We did not, as Indyk suggests, need another six months of talks to “define” what those positions were. Leaked internal documents from previous rounds, published by Al Jazeera three years ago as the Palestine Papers, delineate them with painful clarity. They show that Israel’s terms for settling the conflict have remained consistent for more than a decade: annexation by Israel of the major settlement blocs, on approximately 9 percent of the West Bank; and a nullification of the Palestinian refugees’ right of return.


After Abuse Under State Supervision, Transgender Connecticut Teen Held in Solitary Without Charge

May 8, 2014

We look at the case of "Jane Doe," a 16-year-old transgender girl of color in Connecticut imprisoned in solitary confinement without any criminal charges. One month ago today, a Superior Court judge ordered her sent to prison after the Connecticut Department of Children and Families requested the transfer, claiming they could not safely care for her. The move is allowed under a rarely used Connecticut statute. To justify sending Jane Doe to prison, DCF cited her alleged history of violent behavior. But in an affidavit to the court, Jane Doe wrote: "I feel that DCF has failed to protect me from harm and I am now thrown into prison because they have refused to help me." She goes on to detail how she was repeatedly sexually and physically abused between the ages of eight and 15, at the hands of both relatives and DCF staff, all while she was under DCF’s supervision. Describing her confinement at an adult women’s prison in Niantic, Connecticut, Doe wrote in an op-ed for The Hartford Courant: "I’m in my room 22 hours a day with a guard staring at me — even when I shower and go to the bathroom. It’s humiliating. Women constantly scream and cry and it was hard to sleep. They moved me down a different hallway where it’s not as crazy. I tell myself that this is just a nightmare, but it doesn’t end." We are joined by Jane Doe’s lawyer, Aaron Romano, and Chase Strangio, staff attorney with the American Civil Liberties Union’s Lesbian, Gay, Bisexual and Transgender Project.


snip*Well, to talk more about Jane Doe’s case, we’re joined by Aaron Romano, Jane Doe’s lawyer in federal court. He’s speaking to us by audio stream from Hartford, Connecticut. And here in New York we’re joined by Chase Strangio, staff attorney with the ACLU’s LGBT Project.

We welcome you both to Democracy Now! Let’s begin with Aaron Romano. Tell us just where Jane Doe is now and what has happened to her?

AARON ROMANO: So, Jane Doe is in an adult female facility in Connecticut. There’s only one female facility in Connecticut. And because of her status as a juvenile, she has to be separated from any and all—from sight and sound from any and all adults. So she’s in virtual isolation from anyone else in that jail.

JUAN GONZÁLEZ: And why are they—why is the state claiming that they have so much problem being able to handle her?

AARON ROMANO: Well, you covered that a little bit here. She was in DCF supervision from the age of five and sexually abused from the age of eight through 15. So that was about seven years of sexual abuse that she suffered. While she was in a residential treatment facility, through DCF supervision, a staff member aggressively approached her, placed her in an illegal restraint. That staff member was later discharged for that illegal restraint. And she defended herself. After experiencing sexual abuse for close to seven years, a child will have a certain sensitivity to touch or approach and may interpret certain situations from a very defensive perspective. And the staff should have been well aware of that. So in response to that, DCF just wanted to pass the buck on, so to speak, to the Department of Corrections, and they wanted to just dump her on the Department of Corrections and say, "Listen, we don’t want to take care of her anymore. You take care of her."

in full: http://www.democracynow.org/2014/5/8/after_abuse_under_state_supervision_transgender

Big Banks Caught Red Handed but Continue to Avoid Prosecution

May 5, 2012

Bill Black: Despite a government accountability office investigation uncovering new evidence of illegal robo-signing, authorities still striking deals instead of locking up wrongdoers

snip* SHARMINI PERIES, TRNN PRODUCER: Welcome to The Real News Network. I'm Sharmini Peries in Baltimore.

This is our segment with Bill Black. Bill Black is an associate professor of economics and law at the University of Missouri-Kansas City. He's a white-collar criminologist and former financial regulator. He's the author of The Best Way to Rob a Bank Is to Own One. And he's a regular contributor at The Real News Network.

Thanks for joining us, Bill.


PERIES: Bill, I understand you have two strategies to report on today, one that throws the homeowners under the bus, and another one: how the federal government plans on protecting bankers once again.

BLACK: So the one about the homeowners has to do with a GAO study that just came out. And the GAO looked at one of these programs in which the banks agreed with the Federal Reserve and the Office of the Comptroller of the Currency, which is supposed to regulate the largest national banks, to review their loan files and find out where they had screwed up in foreclosures or failing to give relief and to provide substantial payments to homeowners who were the victims of this practice, except that it all went disastrously wrong. So they started this review of the banks' records, and it turned out that the records were in such terrible shape that the people doing the review, who were consultants chosen by the banks, concluded that they couldn't complete the review unless they spent many years and billions of dollars doing it, because the loan files were in such bad shape.

Now, that should have caused everyone to reexamine how often they were engaged in fraud, the so-called robo-signing in which they lied in their affidavits that they had established a basis to foreclose on people's homes. But, of course, it didn't lead to that. Instead, it led to a deal in which the OCC and the Fed released the banks from the requirement to do the file reviews. And the GAO says, because of this, homeowners will get a billion and a half fewer dollars. And, of course, there was no completed review to find the facts and to determine who actually was the victims of all of that. So that's the first atrocity.

in full: http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=11816

Deal Book Embraces Unintentional Self-Parody ( William K. Black )

May 2, 2014

I have been attempting the vain act of trying to embarrass the New York Times’ Deal Book feature into dropping its ethics-free reportage of elite financial crimes. I have had so little success that today’s James Stewart column reached the pinnacle of unintentional self-parody of Deal Book’s zealous efforts to remove any concept of ethics from its reportage of elite white-collar crime. The substance of piece is reporting that Steve Jobs “was a walking antitrust violation.” Stewart focuses on the cartel Jobs formed with other giant firms to fix (and suppress) employees’ salaries.

But the title of the piece takes the fact that Jobs was a serial felon who caused great harm to employees and preforms a remarkable transformation in which he is praised as “Steve Jobs, a Genius at Pushing Boundaries.” “Pushing boundaries” is Deal Book’s euphemism for Jobs’ crimes that he committed in order to make the already spectacularly wealthy CEO even wealthier – at the direct expense of his employees. And, this being Deal Book, and James Stewart being what Stewart has descended to, we have the inevitable claim that Jobs was a “genius” at crime. But it turns out that if you consider the facts reported; he wasn’t a genius. His violations of anti-trust law were obvious crimes. Instead, his key characteristic was the one we always emphasize is critical about the most fraudulent CEOs – audacity. Jobs had gotten away with committing so many crimes that he came to believe he was immune from prosecution.

At this stage in the story, Stewart obviously had to explore at least four ethical issues to explain to readers the significance of Jobs’ crimes. The first issue was the unique danger created by the fact that greed is insatiable. It did not matter how much a plutocrat Jobs became – he always wanted more and was happy to engage in brazen crimes to make him wealthier. The second issue is that he was willing to commit crimes that made him wealthier at the direct expense of his employees. Third, CEOs set the ethical “tone at the top” and when the CEO is a crook he sets a corrupt tone at the top that encourages the employees to commit other crimes and unethical acts that would boost their pay. Fourth, the CEOs of Apples’ top rivals agreed to commit the same cartel felonies as Jobs. This created a “Gresham’s” dynamic that helps other ethical firms (or potential entrants) out of the markets.

As you knew, because it was Deal Book and because of the title of Stewart’s column, the column exemplifies the Deal Book’s deliberate policy of excluding discussions of the ethical and business implications of elite fraud committed with impunity. This is particularly awkward, if logical consistency were a trait Deal Book embraced, given the first sentence of Stewart’s column. “If Steve Jobs were alive today, should he be in jail?” Answering the question “should” inherently requires a discussion of ethics. Stewart, however, is simply being coy – his article never discusses or answers the question he describes as “the provocative question being debated in antitrust circles….” Nor does Stewart ask why that question is being debated “in antitrust circles” rather than in the high tech industry.


Realizing change through monitoring, reporting, and fact-finding: B’Tselem’s work regarding OCL

B'Tselem was founded as an information center, out of a perhaps naďve belief in the power of information. If people knew what was happening a few miles away, where the Israeli military maintained its occupation of the Palestinian population, the problems of violence and oppression would be solved – or so we hoped. Monitoring, reporting and fact-finding (MRF) were the primary tasks of the organization: taking testimonies from victims and eye-witnesses to human rights violations, cross-checking this information with other sources and producing comprehensive reports that place these violations in their broader legal context.

That was 25 years ago. Fairly quickly we came to understand that ignorance regarding the human rights violations is not the primary problem. Even when presented with clear evidence regarding human rights violations, people found ways to explain, and deny and justify – a phenomenon studied by criminologist Stanly Cohen, one of B'Tselem's founders, in his book States of Denial.1 More and more documentation of the violations themselves was not going to overcome these mechanisms of rationalization.

Over the years, we developed new strategies to advance human rights: conducting domestic and international advocacy, promoting criminal accountability, and using new media tools to mobilize the public. Yet MRF remains the backbone of B'Tselem's work – it is the necessary first step of any strategy to make change.

There are probably more journalists in Israel-Palestine than in any other conflict zone on earth. With the development of the internet, we all have access to more information than ever before. But an abundance of information is not necessarily helpful, if that information is unreliable. In fact, much of the information regarding human rights produced in our context is manipulated to advance the agenda of one side or the other. For this reason, B'Tselem relies solely on its own documentation or the work of trusted sources.

in full: http://phap.org/thematic-notes/2014/april/realizing-change-through-mrf-b%E2%80%99tselem%E2%80%99s-work-regarding-operation-cast-lead

Demented Tony Blair recites the Saudis' creed in his latest speech

World View: The former prime minister's intervention on radical Islam was aimed at all the wrong targets

April 27, 2014

Ayman al-Zawahiri, the leader of the core group of al-Qa'ida, may well chortle in disbelief if he reads a translation of Tony Blair's latest speech on the Middle East delivered last week. If Blair's thoughts are used as a guide to action, then the main beneficiaries will be al-Qa'ida-type jihadist movements. Overall, his speech is so bizarre in its assertions that it should forever rule him out as a serious commentator on the Middle East. Reading it, I was reminded of a diplomat in Joseph Conrad's Secret Agent called Mr Vladimir who fancies himself an expert on revolutionaries: "He confounded causes with effects; the most distinguished propagandists with impulsive bomb throwers; assumed organisation where in the nature of things it could not exist."

The speech, entitled "Why the Middle East matters", is about the threat from radical Islam, what it consists of and how it should be countered. Mr Blair says that "there is a titanic struggle going on within the region between those who want the region to embrace the modern world and those who, instead, want to create a politics of religious difference and exclusivity." On one side stand those who want "pluralistic societies and open economies", on the other those who want to impose an exclusive Islamic ideology.

Here the reader might suppose that Blair is building up towards some sharp criticism of Saudi Arabia and its fundamentalist Wahhabi creed. What could be more opposed to pluralism in politics and religion than a theocratic absolute monarchy such as Saudi Arabia which is so notoriously intolerant of other versions of Islam, such as Shi'ism, as well as Christianity and Judaism, and is, moreover, the only place in the world where women are not allowed to drive? Here is the home country of 15 out of 19 of the 9/11 hijackers and of the then leader of al-Qa'ida, Osama bin Laden, whose religious views are rooted in mainstream Wahhabism.

Blair denounces those who espouse an Islamist ideology in which the ultimate goal "is not a society which someone else can change after winning an election". Surely he should be thinking here about King Abdullah of Saudi Arabia, his namesake in Jordan and the Gulf royals who inherited their thrones. But Blair goes on to make the astonishing claim that the guilty party in fostering extreme jihadist Islam is none other than the Muslim Brotherhood which stood for and won an election in Egypt before it was overthrown by the military.

in full: http://www.independent.co.uk/voices/comment/demented-tony-blair-recites-the-saudis-creed-in-his-latest-speech-9292292.html

Foreign suicide bombers kill thousands and bring Iraq to the brink of civil war

A wave of suicide bombings carried out by foreign volunteers entering Iraq from Syria is killing some 1,000 civilians a month, bringing the country back to the brink of civil war. Many of the bombers are likely to have entered Syria across the 500-mile border with Turkey in the expectation that they would be giving their lives to overthrow Syrian President Bashar al-Assad and his government.

The foreign jihadists are brought to Iraq by the Islamic State of Iraq and the Levant (Isis), which in recent weeks has started to publicise on its Twitter feed the national origins of the bombers. According to a study by Bill Roggio, of the Long War Journal website, of 26 Isis bombers in one much-fought over Iraqi province, Diyala, north-east of Baghdad, no less than 24 were foreigners whose noms de guerre indicate that the majority came from North Africa, with 10 from Tunisia, five from Saudi Arabia, two each from Libya and Egypt, and one each from Denmark, Chechnya, Iran and Tajikistan.

Isis, which is seeking to establish an Islamic state in Iraq and Syria, does not recognise the border between the two countries. The bombers carried out their missions between September 2012 and today, but there has been a sharp escalation in bombings, usually aimed at killing as many Shia as possible, over the past year, with 9,571 civilians killed in 2013 and 3,630 killed so far in 2014.

The Iraqi government has for the first time become more open about which foreign states it holds responsible for supporting foreign jihadists fighting on its territory. In an interview last month with France 24 television, the Prime Minister, Nouri al-Maliki, directly accused Saudi Arabia and Qatar of being “ primarily responsible for the sectarian, terrorist and security crisis in Iraq”. He said allegations that his government was marginalising the Sunni Arab community were made by “sectarians with ties to foreign agendas, with Saudi and Qatari incitement”.

in full: http://www.independent.co.uk/news/world/middle-east/foreign-suicide-bombers-kill-thousands-and-bring-iraq-to-the-brink-of-civil-war-9272391.html

Oslo: Replacing liberation with economic neo-colonialism

By Al-Shabaka

Al-Shabaka is an independent non-profit organization whose mission is to educate and foster public debate on Palestinian human rights and self-determination within the framework of international law.

This policy brief is authored by Khalil Nakhleh, a Palestinian anthropologist and the author of Globalized Palestine: The National Sell-out of a Homeland.

This is not an assessment of the impact of the Oslo Accords that began to be signed in 1993. It was never the kind of "process" that could lend itself to a balance sheet type of analysis that would show the positives and negatives of what transpired. The accords were destructive from the start.

As the late Edward Said brilliantly put it, "The fashion-show vulgarities of the White House ceremony … only temporarily obscure the truly astonishing proportions of the Palestinian capitulation. So … let us call the agreement by its real name: an instrument of Palestinian surrender, a Palestinian Versailles."

remainder: http://www.maannews.net/eng/ViewDetails.aspx?ID=692357

U.S. Ordered to Release Memo in Awlaki Killing

APRIL 21, 2014

A federal appeals panel in Manhattan ordered the release on Monday of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who intelligence officials contend had joined Al Qaeda and died in a 2011 drone strike in Yemen.

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”

The ruling stemmed from lawsuits filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane, and by the American Civil Liberties Union.

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