Tuesday, June 17, 2008 - Posts
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For what it's worth, Bill Kristol was on Fox News Sunday claiming that "very soon," Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key passage.
KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials. And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ...
Senator Lindsey Graham is working on this. And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, ‘Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous.
So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.
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Guess I'm missing something, Phil, but what's the connection you see between the Iqbal grant and the prosecution-planning conference?
Ashcroft v. Iqbal concerns the resort by an individual plaintiff to federal court to seek civil damages against high-ranking federal officials. In so doing, he followed a decades-old path: In Bivens v. Six Unknown Federal Narcotics Agents (1971) the court, by a 6-3 margin, had established such actions as a corollary to 42 U.S.C. § 1983, that portion of the Civil Rights Act of 1871 authorizing suits against state officials alleged to have committed deprivations of civil rights. In contrast, the conference appears to be an effort by private persons to develop a criminal case against high-ranking U.S. officials.
The first case ought to be routine. Deborah's post thus is spot-on in assuming an unfriendly grant of review. The loser below was a high-ranking U.S. official, challenged on account of his actions post-9/11, by means of a litigation vehicle, the Bivens action, that has drawn conservative ire since its inception.
The second instance is quite different. It is true that, in many countries adhering to a continental legal tradition, private persons may act as parties civiles who develop a criminal case and present it to public prosecutors for further investigation, prosecution, and punishment. The procedure's been invoked a number of times—to date unsuccessfully—in efforts to use courts in Germany and elsewhere as forums for criminal actions against U.S. officials like former Defense Secretary Donald Rumsfeld for post-9/11 policies. But there exists no such mechanism in the United States by which the "planning conference" might bear fruit. In any event, there's an apples-and-oranges difference between civil-damages suits and criminal prosecutions ending in imprisonment.
So what's the link?
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Find out at Balkinization.
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Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning
to convene a conference to plan the prosecution, trial, and punishment
for senior Bush administration officials. The effort is reportedly
being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:
"This is not intended to be a mere discussion of violations of law
that have occurred," said convener Lawrence Velvel, dean and cofounder
of the school. "It is, rather, intended to be a planning
conference at which plans will be laid and necessary organizational
structures set up, to pursue the guilty as long as necessary and, if
need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in
courts of justice," Velvel said. "And we must insist on appropriate
punishments, including, if guilt is found, the hangings visited upon
top German and Japanese war-criminals in the 1940s."
... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to
spend years in jail or go to the gallows for their crimes would be a
powerful lesson to future American leaders," Velvel said.
Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...
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