Saturday, July 21, 2007

WaPo Editorial Explains Inherent Contempt (2:13 am)

This is rather an interestingly timed piece of legal edification.

The director of the Rutgers Constitutional Litigation Clinic, Frank Askin, writes in WaPo

that under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.
(…)
The distinction between criminal and civil contempt is well recognized. The punishment for criminal contempt is a set fine or jail term. A civil contempt punishment is framed in terms of either/or: either the defendant does X or suffers daily consequences until X is done. That concept is often explained by the aphorism that the defendant has the keys to the jail in his own pocket. He can free himself by obeying the court order. (The jailing of New York Times reporter Judith Miller for refusing to answer questions during the Scooter Libby investigation is a recent example.)

Thus, the congressional alternative. Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate — i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.
(…)
So, far from being defenseless against the president’s refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.

Gosh, I wonder if Harriet Miers, Josh Bolton, and Robert Duncan read the opinion section of the Washington Post?

posted by Brian Zick | start the discussion

Friday, July 20, 2007

Republicans Obstructing Congress with Filibuster More Than Ever Before (7:01 pm)

Margaret Talev for McClatchy reports:

This year Senate Republicans are threatening filibusters to block more legislation than ever before, a pattern that’s rooted in — and could increase — the pettiness and dysfunction in Congress.
(…)
Nearly 1 in 6 roll-call votes in the Senate this year have been cloture votes. If this pace of blocking legislation continues, this 110th Congress will be on track to roughly triple the previous record number of cloture votes — 58 each in the two Congresses from 1999-2002, according to the Senate Historical Office.

posted by Brian Zick | start the discussion

Confrontation Strategy: Using the Powers of the Purse (6:35 pm)

Mark Kleiman suggests that Democrats selectively defund certain non-essential executive branch operations - such as “the White House press office, political office, personnel office, and counsel’s office” - until Bush cooperates with congressional inquiries. He says appropriations bills can’t be filibustered, and conference reports are not subject to amendment, so if House conferees all insist on maintaining the cuts, any such bill coming out of conference with no funding for those offices would be the only appropriations option available for vote. Republicans could either vote for the bill with the cuts, or else vote for no appropriations at all. Bush could veto the legislation, but then he would be the one responsible for shutting down the necessary operations of government, which such a bill would of course fully fund.

posted by Brian Zick | start the discussion

Appellate Judges Rule Bush Can’t Conduct Blatant Kangaroo Courts in Military Tribunal Cases (3:00 pm)

Matt Apuzzo for AP reports:

The U.S. Court of Appeals for the District of Columbia Circuit rejected the Bush administration’s plan to limit what judges and the detainees’ attorneys can review when considering whether the Combatant Status Review Tribunals acted appropriately.

“Counsel for a detainee has a ‘need to know’ the classified information relating to his client’s case,” the appeals court ruled. “The government may withhold from counsel, but not from the court, certain highly sensitive information.”

The appeals court decision is likely to be considered by the Supreme Court as it decides whether detainees should have greater access to U.S. civilian courts.
(…)
Washington, D.C., attorney David Remes said, however, that the court’s decision “will turn out to be a prescription for endless litigation in these cases.”
(…)
Remes also said that “it’s clear from the decision that the review under the Detainee Treatment Act falls short of constitutionally required habeas corpus review.”
(…)
Jonathan Hafetz, an attorney involved in other detainee cases, said Friday’s court ruling is only a minor improvement in a seriously flawed process.

“It’s definitely better than what the government had proposed but it still doesn’t provide for a meaningful process,” Hafetz said.
(…)
Friday’s unanimous decision was issued by Judges Douglas Ginsburg, Judith Rogers and Karen Lecraft Henderson. Rogers is a Clinton appointee. Ginsburg, the chief judge of the appeals court, is a Reagan appointee. Henderon was appointed by President Bush’s father, George H.W. Bush.

posted by Brian Zick | start the discussion

The Whole World’s Worst Nightmare (2:53 pm)

Josh Marshall says CNN has reported:

President Bush temporarily will transfer power to Vice President Dick Cheney while Bush has a colonoscopy Saturday.

Josh wonders what might be on (Acting) President Cheney’s to-do list.

posted by Brian Zick | start the discussion

Bush: He Was Against It Before He Falsely Claimed He Was For It (11:16 am)

Jesse Lee at The Gavel reports on President Bush on Pay Raises for Our Troops:

President Bush, moments ago:

I’m joined by veterans and military families here to express support to our troops and their mission in Iraq. I want to thank you all for being here today. We’ve just finished a really good meeting. In our discussions, these folks had a message that all of us in Washington need to hear. It is time to rise above partisanship, stand behind our troops in the field, and give them everything they need to succeed. In February I submitted to Congress a Defense Department spending bill for the upcoming fiscal year that will provide funds to upgrade our equipment for our troops in Iraq and provides a pay raise for our military - a comprehensive spending request - that Congress has failed to act on.

President Bush, May 16, 2007:

Military Pay: The Administration strongly opposes sections 601 and 606. The additional 0.5 percent increase above the President’s proposed 3.0 percent across-the-board pay increase is unnecessary.

posted by Brian Zick | start the discussion

Dear Democrats: Time to Dust Off Inherent Contempt. If Not You Who? If Not Now When? (10:41 am)

It is long past time to firmly disabuse this President of the arrogant notion that he and members of his administration may operate above the law. The mechanism of inherent contempt must now be undertaken. Today is not too soon to initiate the action. The arrest and detention of Harriet Miers, Josh Bolton, and DNC Chair Robert Duncan is clearly an imperative now, to compel cooperation with congressional inquiry. And the process of inherent contempt need not in any way conflict with a simultaneous effort to enforce charges of statutory contempt via the courts.

Representatives Conyers and Sanchez have forewarned the administration more than once that inherent contempt is a tool which may of necessity be employed. But Bush would appear to believe it only when he sees it. So show him already.

posted by Brian Zick | start the discussion

Olbermann Special Comment (1:36 am)

Keith responds to Bush blaming anybody and everybody other than himself for his own miserable failures in the Iraq war. And in particular Keith notes the scurrilous attempt by Under Secretary of Defense Eric Edelman to try and scapegoat Hillary Clinton.
Norm at onegoodmove has the video.