The use of the filibuster and other parliamentary maneuvers are on the rise to not only slow passage of legislation, but increasingly to delay action on judicial and other executive branch nominations. During an ACS panel discussion earlier this week, several experts explored the delaying tactics and their effect on the judiciary. The panel included Makan Deirahim, former chief counsel for the Senate Judiciary Committee, Martin Paone, former Democratic Secretary in the Senate, and Matthew Yglesias, fellow at the Center for American Progress Action Fund.

Yglesias, also a blogger at ThinkProgress, said:

Although the filibuster and cloture issue is technically about debate, and defenders of it talk about debate, I think it is worth being clear that actual debating of issues is almost invariably a red herring in these kinds of contexts.

When you have a minority of senators saying they we won't grant cloture on Craig Becker's nomination to the NLRB [National Labor Relations Board], that's not actually because they have more things they want to say about it. It's a tactic that you see has dual uses. One is to impose a super-majority requirement, to say that you can't pass a bill or confirm a nominee unless you have 60 senators, rather than 50. And the other, which in some ways I think has become more important and underrated, is to purely delay action. That the process of filing a cloture petition and letting it ripen takes quite a bit of time, particularly because you can sort of dual-track your refusal to grant unanimous consent and force multiple filings of petition to ever get to a final vote on an issue.

The entire panel discussion is available here or by clicking picture.

Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

Conservatives, including Sen. Charles Grassley and a group affiliated with Liz Cheney, Keep America Safe, have attracted plenty of media attention for sharply criticizing Department of Justice lawyers who represented military detainees earlier in their careers. A hyperbolic video by Keep America Safe called "DOJ: Department of Jihad?" has been blasted as "beyond a cheap shot" by former Bush White House attorney Reginald Brown.

But what's gone largely missing in the story is comparison with a similar situation that occurred during the George W. Bush administration. A top Pentagon official, Charles "Cully" Stimson, commented in a radio interview that he found it "shocking" that a number of U.S. law firms had represented Guantanamo Bay detainees. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter. "Some will maintain they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

Just as the current attacks by Keep America Safe have sparked bipartisan criticism, Stimson's January 2007 comments drew sharp critiques across the political spectrum. As noted by The Huffington Post's Sam Stein, Ted Olson, former solicitor general during the Bush administration and a member of the Federalist Society's Board of Visitors, co-authored with then-Georgetown law school professor Neal Katyal an article for Legal Times blasting Stimson's comments. (About a month after his attacks on the law firms, Stimson resigned his Pentagon post.)

Olson (pictured) and Katyal wrote: 

The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession.

When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

Sen. Charles E. Grassley and conservative organizations, such as Keep America Safe are accusing nine Department of Justice attorneys of being "terrorist sympathizers." The Washington Post's Carrie Johnson reports that conservatives opposed to the administration's efforts to shutter Guantanamo Bay "have trained their fire on an unusual target: political appointees in the Obama Justice Department who represented detainees earlier in their careers." Johnson notes that Grassley has been badgering the DOJ "for months" about releasing the names of those attorneys. Keep American Safe, a group The Post describes as being affiliated with Vice President Dick Cheney's daughter, Liz Cheney has piled on with an over-the-top YouTube video called "DOJ: Department of Jihad?"

The video, The Post reports, has now garnered criticism from both Democrats and Republicans. The newspaper cites as an example George Washington University law school professor Orin Kerr's blog post for the Volokh Conspiracy that said the video was akin to something "former Senator Joseph McCarthy would have used ... if he were alive today." Kerr, winner of a prestigious Federalist Society award and a former prosecutor in the DOJ's Criminal Division, as part of the Attorney General's Honor Program, is hardly a staunch backer of much of the administration's policy on terrorism. A former Bush White House attorney Reginald Brown scored the video as being "beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court."

For more on what he describes "a smearing of Justice Department lawyers," see Adam Serwer's recent article for The American Prospect. 

Scores of law professors have lined up behind the nomination of Dawn Johnsen to lead the Office of Legal Counsel (OLC). Main Justice notes a letter signed by more than 400 law professors was sent to the Senate Judiciary Committee urging action on the nomination. President Obama nominated Johnsen, an Indiana University law professor and former member of the ACS Board of Directors, a year ago. He re-nominated her earlier this year.

The professors' letter blasts the Senate for "obstruction" that "is simply unacceptable."

They also maintain:

Professor Johnsen is immensely qualified for this position. She has extensive previous experience in the Office of Legal Counsel, including service as its acting head for more than a year during the Clinton Administration. Doug Kmiec - the OLC head under Presidents Ronald Reagan and George H.W. Bush - has applauded Professor Johnsen's track record during that service, noting that she "repeatedly separated policy preference from rendered opinion."

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.

As an attorney who represents people charged with terrorism offenses on a regular basis, I too am worried about us lawyers, and was glad to see that I'm not alone. Yet the Court's sympathy for that particular class of victims struck me as rather odd. I could not help but wonder if the justices, and Kagan for that matter, would have been so sanguine about allowing the government to ban pure humanitarian assistance if they had been as close to relief workers as they were to lawyers. Would they have accepted a proscription on vital assistance to tsunami victims if they had seen the devastation I saw the day after that giant tidal wave killed 30,000 Sri Lankans in a matter of minutes? Surely if they had looked into the eyes of the children who had lost their parents in the blink of an eye, or seen the desperation on the faces of refugees who needed drinking water at the camps I visited, they would not have allowed Congress to prohibit relief groups from giving aid to the people who could most efficiently deliver it to the victims, even if they happened to be humanitarian workers who were members of the LTTE.

While the LTTE no longer controls territory in Sri Lanka, the material support laws at issue in Humanitarian Law Project continue to vex humanitarian groups around the world. The American Civil Liberties Union (for whom I work as an attorney) filed an amicus brief on behalf of nine humanitarian organizations, including the Carter Center, the Christian Peacemakers, and Human Rights Watch. The groups teach conflict resolution, provide humanitarian aid, and engage in various other activities that require them to work with designated terrorist organizations. These groups told the Court that they may be forced to severely curtail many of their activities because of the material support laws, and asked the Court to recognize that the First Amendment protects their right to provide humanitarian assistance that is intended to promote non-violent, humanitarian purposes, even if it also constitutes "material support" to the designated terrorist groups under the broad language of the Patriot Act.

As I remembered the people I had seen suffer in Sri Lanka, it filled me with great sadness to watch President Barack Obama's hand-picked representative to the Supreme Court defend a position so blind to the needs of innocent civilians. Twenty years ago, President Reagan famously authorized food aid to the Communist dictatorship in Ethiopia at the height of the Cold War, proclaiming that "a hungry child knows no politics." He could just as easily have been referring to the children of Pakistan, Colombia, Iraq, or any number of other countries today, where humanitarian groups have sought to ameliorate the misery suffered by civilian victims of war and natural disaster. The Red Cross has enshrined that same principle in its own Code of Conduct, which states that "the humanitarian imperative comes first. The right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries." We can only hope that Justice Kennedy and his colleagues will remember those widely-revered words, and those of the president who appointed him, as they consider how to resolve this important case.

Across the country, public defender offices are underfunded and understaffed, drowning in overwhelming caseloads. Public defenders are dedicated lawyers trying their best to represent their clients in often-impossible circumstances. Even worse, in many areas around the country, there are no public defender systems at all, resulting in a haphazard system of appointing lawyers who may be unprepared, without sufficient resources, and have no relevant experience.

It has been nearly 50 years since the U.S. Supreme Court's decision in Gideon v. Wainwright decreeing that there is a constitutional right to a lawyer in criminal cases and that the government must provide one if the defendant cannot afford one. The Court recognized that well-trained and adequately resourced defense lawyers are the best way to determine whether the right person has been arrested for a crime. Yet states and localities are not providing the funds to pay for these lawyers, meaning that poor people are languishing in jail at the taxpayers' expense with no real opportunity to mount a defense.

While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously.

The U.S. Department of Justice has just hosted a National Symposium on Indigent Defense, the first of its kind in 10 years. One of the goals of the Symposium was to look at America's indigent defense systems in each state from top to bottom, and to examine both successful and failed attempts at indigent defense reform. Attendees committed to working together to craft new ideas for successful reforms, while forging alliances and building partnerships to achieve them. We applaud the Department of Justice's leadership in hosting this Symposium. It is a much-needed effort to spotlight the failings of the nation's criminal justice system and the crises persisting in state public defense programs.

However, the Symposium is, in our view, only the beginning of the work that must be done to fulfill the promise of Gideon.

As Thomas Perez, the Assistant Attorney General for the Civil Rights Division, said in a speech to the Symposium, the indigent defense crisis is the civil rights issue of our time. While many private organizations and individuals are working hard to address the crisis, they simply do not have the resources and cannot do it alone. With limited state and county resources and capacity, the federal government must step in and become a full partner in these efforts, providing critically needed resources and leadership.

We have long known how to fix these problems. The report of the Constitution Project's National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country's indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association's Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that. We urge the Department of Justice to support this effort with adequate resources for three-year public defense fellowships for committed lawyers who can work to change the culture of indigent defense systems nationwide.

We applaud the Department of Justice for hosting this National Symposium on Indigent Defense, for recognizing the crisis in indigent defense, and for taking an important first step in the right direction. We call on the Department to take the next steps of educating all Americans about the crisis and the need to address it, and -- most important of all -- to provide the resources that are so urgently needed to ensure that Gideon's promise is finally fulfilled.

[Image via Wade Wofford.]

Senate Republicans should cease holding up President Obama's "well qualified" nominee to head the Office of Legal Counsel (OLC), top Senate Judiciary Committee members maintain in a column for The National Law Journal.

Sens. Patrick Leahy, chairman of the Senate Judiciary Committee, and Sheldon Whitehouse, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts, write that months "of obstruction by Senate Republicans" have stymied a vote on Dawn Johnsen's nomination to lead the OLC, noting that Obama nominated her a year ago.

Leahy and Sheldon write:

Johnsen has previously served for five years in OLC. She defended legitimate presidential powers. She produced opinions that conformed to the law, even if they did not advance the president's political interests. She has a proven record of setting aside her personal views to render independent legal opinions rooted in the Constitution and the law. Johnsen's former colleagues have called her the conscience of the office. Walter Dellinger, her former boss at OLC, has said that she ‘will be the best head of the OLC in the history of the office.'

Main Justice notes that after Obama re-nominated Johnsen, an Indiana University law school professor and a former member of the ACS Board of Directors, in January, the Senate committee has continued to delay a vote on the nomination. "The panel is expected to consider her nomination next week," according to Main Justice.