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Wednesday, April 16, 2008

Supreme Court Allows Lethal Injection for Execution

WASHINGTON — The Supreme Court on Wednesday upheld Kentucky’s method of execution by lethal injection, rejecting the claim that officials there administered a common sequence of three drugs in a manner that posed an unconstitutional risk that a condemned inmate would suffer acute yet undetectable pain.

While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk.

“A slightly or marginally safer alternative” would not suffice, the chief justice said. He added: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.

At issue in the case was not the constitutionality of lethal injection itself, the method specified by 35 of the 36 states that have the death penalty. (Nebraska is the exception.) Rather, the challenge was to the details of the injection’s administration: the chemicals used, the training of the personnel, the adequacy of medical supervision, and the consequences and risk of error.

The legal question was what standard to apply in evaluating the risk. The appeal, brought by two men on Kentucky’s death row, Ralph Baze and Thomas C. Bowling, each convicted of double murders, asked the court to find the Kentucky protocol unconstitutional if it imposed an “unnecessary risk” of error in light of potential alternatives. Chief Justice Roberts, applying the more rigorous standard he outlined, said the risks identified by the inmates were not “so substantial or imminent as to amount to an Eighth Amendment violation.”

While most states use a method similar to Kentucky’s, a number of them have adopted additional safeguards to ensure that an inmate is properly anesthetized by the initial drug in the sequence, a barbiturate, before administration of the second two, which paralyze the muscles and stop the heart.

In fact, Justice Ruth Bader Ginsburg, in a dissenting opinion, listed several of these states and described the extra steps they have taken, to show that Kentucky could and should be required to do a better job. The states she named were Alabama, California, Florida, Indiana and Missouri. The other dissenter, Justice David H. Souter, signed her opinion.

Dozens of executions have been delayed around the country in recent months. Gov. Tim Kaine of Virginia, a Democrat, announced within hours of the ruling that he was lifting a moratorium on executions he had imposed, and other states were expected to follow. The Supreme Court itself had not imposed a general moratorium, instead granting individual stays of execution in cases that reached the court. Those stays will dissolve automatically when the justices deny the underlying appeals, as they are expected to do in the next week or two.

The court issued its decision on the same morning that it heard arguments in another closely watched death penalty case, a challenge to Louisiana’s application of capital punishment for the crime of child rape. The two men on Louisiana’s death row for raping young girls are the only two people in the country who have been sentenced to death for a crime in which death did not result.

In the Kentucky case, there was considerably less agreement among the justices than the vote of 7 to 2 might indicate. Six of the seven justices in the majority wrote separate opinions. The chief justice’s opinion was signed by only two others, Justices Anthony M. Kennedy and Samuel A. Alito Jr. Justice Kennedy was the only member of the majority who did not write separately.

Justice Alito wrote a separate opinion suggesting that he regarded the chief justice’s opinion as insufficiently conclusive and therefore open to “misinterpretation” by those who might see it as an invitation to “litigation gridlock.” Justice Alito said that because ethics rules bar most medical professionals from taking part in executions, challenges based on the absence of doctors and nurses from the execution chamber must fail because an alternative protocol that would require their participation “cannot be regarded as ‘feasible’ or readily available.”

Another member of the majority, Justice John Paul Stevens, said in his separate opinion that he felt bound by the court’s precedents to uphold the constitutionality of the Kentucky protocol. But he went on to call for abolishing the death penalty, both as a matter of policy and of Eighth Amendment jurisprudence. “State-sanctioned killing,” Justice Stevens said, was “becoming more and more anachronistic.”

Justice Stevens voted with the majority that restored capital punishment in 1976, his first year on the court. But he said he had changed his mind, based on “my own experience” in seeing how the death penalty is actually carried out in a changing climate. Among the factors he singled out was a series of decisions that he said had “endorsed procedures that provide less protections to capital defendants than to ordinary offenders.”

The set of opinions in this case, Baze v. Rees, No. 07-5439, put the personalities and priorities of the individual justices on display as much as any case in recent years.

There was Chief Justice Roberts, including in his opinion a discourse on the need for courts to step aside. The Kentucky inmates’ proposed approach, he said, “would embroil the courts in ongoing scientific controversies beyond their expertise and would substantially intrude on the role of state legislatures in implementing their execution procedures.”

There was Justice Stevens, the court’s senior member, who turns 88 on Sunday, taking a singular path as he has so often during his long career.

There was Justice Antonin Scalia, pugnacious as ever, sufficiently provoked by Justice Stevens’s position as to demand, in a separate opinion, “What prompts Justice Stevens to repudiate his prior view and to adopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution?” He added, “Purer expression cannot be found of the principle of rule by judicial fiat.”

There was Justice Clarence Thomas, joining the majority judgment while expressing the view that “this is an easy case” because “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain,” which Kentucky’s protocol obviously was not.

There was another member of the majority, Justice Stephen G. Breyer, digging deeply into the scientific evidence and concluding that, while there were grounds for “legitimate concern,” he could not find “either in the record or in the readily available literature that I have seen, sufficient grounds to believe that Kentucky’s method of lethal injection creates a significant risk of unnecessary suffering.”

And there was Justice Ginsburg, writing a carefully modulated, almost minimalist dissenting opinion in which she did not go so far as to declare Kentucky’s protocol unconstitutional. Rather, she said, the court should “vacate and remand” the Kentucky Supreme Court’s decision that upheld the protocol, instructing it to consider whether the state’s omission of safeguards used by other states “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

The argument about pain is based on the sequence of drugs used by Kentucky and other states. Pancuronium bromide, which is a paralyzing agent, and potassium chloride, which stops the heart, would both cause excruciating pain if a person was not first placed under deep anesthesia. If the anesthesia is insufficient, the paralyzed inmate would not be able to move or cry out.

There have been various problems with lethal injection executions, including evidence of insufficient anesthesia in some cases. One hurdle for the Kentucky challengers was that the state has carried out only one execution, which proceeded without apparent problems, since adopting the method in 1998.

Donald B. Verrilli Jr., who argued the case for the two inmates, said in an interview that it still remained open to challengers to argue that even in a state with a protocol that looked acceptable on paper, officials were not carrying it out with sufficient care.

Immediately after announcing the lethal injection decision on Wednesday, the court turned to the argument in the Louisiana case on the constitutionality of the death penalty for raping a child.

It has been 43 years since anyone has been executed in the United States for rape. In 1977, with 30 men on death row for rape, the court ruled in a Georgia case that the Eighth Amendment prohibited the death penalty for that crime. The victim in that case, Coker v. Georgia, was a 16-year-old married woman who was referred to as an adult throughout the opinion.

While the question presented to the court in the Coker case did not differentiate between adults and children, the decision for years was widely interpreted as barring capital punishment for any rape. Nonetheless, Louisiana enacted its law in 1995, and several other states followed suit, for a current total of five that permit the death penalty for the rape of a child.

The justices’ questions from the bench indicated that most saw the Coker decision as limited to adult victims, with the issue of whether death could be imposed for raping a child still an open one, not governed by precedent. Patrick Kennedy, the defendant in this case, Kennedy v. Louisiana, No. 07-343, was convicted of raping his 8-year-old stepdaughter.

Only in Louisiana could he have received the death penalty, because the other states — Montana, Oklahoma, South Carolina and Texas — apply their laws only to those with prior convictions. Mr. Kennedy’s lawyer, Jeffrey L. Fisher, argued that this demonstrated a “national consensus” against the penalty, at least for a first-time offender.

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Tax-free Internet shopping days could be numbered

Americans gather at the base of the Capitol building in Washington, D.C., to protest the income tax and federal government overreaching. Rep. Ron Paul spoke at the rally earlier in the day.

(Credit: Declan McCullagh/

If tax-hungry politicians get their way, the days of ordering items over the Internet and not paying sales tax may become just a fond memory.

Right now, if a California resident orders something from Seattle-based, for instance, he or she won't be charged sales tax at the time of purchase. That's because Amazon doesn't have offices in the state of California.

Pro-tax politicians want to change this by allowing California to force Amazon to collect and submit sales taxes--and they may have found an ally in a U.S. Congress that's controlled by Democrats. (Note: See our related story on new taxes on digital downloads.)

Two bills are pending in Congress that would allow tax collectors to target out-of-state Internet and mail-order retailers, and their supporters are optimistic about their political prospects.

"I certainly would love to see a floor vote," said Neal Osten, federal affairs counsel for the National Conference of State Legislatures (NCSL), a lobby group for state politicians. "We've heard encouraging words from the Democratic leadership in the House."

Meanwhile, pro-tax states are trying their own ways to circumvent a long-standing rule saying a retailer must have physical presence before it can be forced to collect taxes. One effort came from New York state, where legislators recently approved a measure requiring Amazon and other online retailers (that lack a physical presence in the state) to collect sales tax on New Yorkers' purchases.

That amounts to a declaration of war against Amazon, and a legal battle now seems all but inevitable.

This is not exactly a new debate. For years, politicians in state legislatures and the U.S. Congress have been arguing that the rise of e-commerce is causing them to miss out on potentially millions of taxpayer dollars. But now, with a Democratic Congress and a potentially Democratic administration next year, the arguments may gain more political traction.

Technically, of course, Americans in states with sales taxes are supposed to keep track of out-of-state purchases and cough up the necessary sales tax on April 15--the concept is known as a "use tax". But state tax collectors have long complained that in practice, that just doesn't happen, and that money has been unfairly left in taxpayers' pocketbooks.

Verenda Smith, government affairs associate for the Federation of Tax Administrators, framed the decision as a moral one of sorts: "Do you want to be a good American, or do you want to be an American who wants to cheat your government deliberately? It's a harsh way to look at it, but it's true."

Smith said she's also concerned that there's not a level playing field, which is potentially giving online retailers an advantage over their brick-and-mortar counterparts.

It's not exactly clear how much money states are losing to uncollected use taxes. Some politicians have thrown around claims in the past that state and local governments will have lost nearly half a trillion dollars in uncollected sales taxes by 2011.

More generally, total e-commerce sales were estimated at $136.4 billion in 2007, up about 19 percent from the year before, according to the latest U.S. Census statistics. That figure still accounted for only about 3.4 percent of total 2007 retail sales in the United States, however, as opposed to about 2.9 percent in 2006.

'Tyranny Response Team' clothing was popular among rally attendees. Speakers at the rally challenged the U.S. government to show them what section of federal law requires regular Americans to pay income taxes. Here's what the IRS has to say.

(Credit: Declan McCullagh/

The legal limits of sales-tax collection
States are currently limited in their sales tax collection authority because of a 1992 U.S. Supreme Court decision in the Quill v. North Dakota case. It says retailers aren't required to collect sales taxes from customers who live in states where they don't have a physical presence, or "nexus." The justices did, however, make it clear that Congress could step in and change the rules.

The ruling came out the way it did in part because tax codes tend to be quite complex and vary among states and localities, with bewilderingly different tax rates associated with the same kind of product. In response, some states have tried to smooth out their differences.

Over the past five years, 22 states have signed on, either wholly or partially, to a plan known as the Streamlined Sales Tax and Use Agreement, in which they agree to simplify their tax codes and make them uniform. About 20 more states are still considering whether to participate.

Steve Del Bianco, executive director of the NetChoice Coalition, whose members include eBay and Yahoo, said he doesn't think the plan has really simplified matters for retailers, nor has it produced the effects states were seeking.

"Fiscally strapped states thought that (the streamlined sales tax project) would bring a flood of new tax revenue, but they're seeing just a trickle, and that's coming from sellers who should have already been collecting under the old tax laws," he said.

That may be in part because adopting the streamlined sales tax system is voluntary to begin with. Participating states don't have the authority to require any retailers to collect those taxes from their residents, although if companies sign up to collect sales taxes under the regime, they must agree to do so in all participating states. (Some 1,000 companies have signed up so far, resulting in at least $150 million in newly collected taxes since the venture began, said NCSL's Osten.)

The push in Congress
Two bills introduced last spring in Congress, however, would change that. The Senate version is sponsored by Republican Michael Enzi of Wyoming and Democrat Daniel Inouye of Hawaii, and the House of Representatives version was introduced by Democrat Bill Delahunt of Massachusetts and is co-sponsored by Rep. John Conyers, chairman of the influential House Judiciary Committee.

In the past, similar proposals have stalled in part because of a disagreement over a section that attempts to exempt "small businesses" from the new tax-collection burden. Both pending bills stipulate that sellers who bring in less than $5 million in taxable sales per year don't have to collect taxes from their customers. eBay, for one, has argued that exemption is too high and could cause new administrative headaches for even small-time sellers.

The relevant congressional committees have already held hearings on the issue, with the latest one occurring last December in a House Judiciary subcommittee. The NCSL's Osten said he feels good about how that hearing went.

Elly Pickett, an Enzi spokeswoman, said the Wyoming Republican "continues work to secure additional co-sponsors and is hopeful it will be considered this year."

Aides to the committees controlling the bills' movement were less forthcoming about what happens next. An aide to Sen. Max Baucus, the Democratic chairman of the Senate Finance Committee, said the committee was aware of Enzi's bill but hasn't scheduled debate on it yet. House Judiciary Committee aides did not respond to requests for comment.

As for New York's recent move, it aims to circumvent the tax-collection restrictions that differ from the more common streamlined sales tax project. Instead, the state determined that any online retailer with "affiliates" located in its state would be required to collect sales taxes from purchases by New York-based customers.

Amazon, for example, has thousands of "affiliates" to whom it pays a commission for linking to products for sale on its Web site. Presumably some of them are located in New York, which would mean, under the state's interpretation, that it would have to collect sales tax from its residents. ( did not respond to's requests for comment on the New York law but has previously said it's still reviewing the language.)

Other states, including California, have considered such steps, but Osten said his group would actually discourage that method if they're really interested in increasing their tax revenues. "I think this option is one that is probably gong to be litigated and will therefore cause delay," he said.'s Declan McCullagh contributed to this report.

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Hillary Clinton On Southern Working Class Whites In 1995: "Screw 'Em"

During the past week, Sen. Hillary Clinton has presented herself as a working class populist, the politician in touch with small town sentiments, compared to the elitism of her opponent, Sen. Barack Obama.

But a telling anecdote from her husband's administration shows Hillary Clinton's attitudes about the "lunch-bucket Democrats" are not exactly pristine.

In January 1995, as the Clintons were licking their wounds from the 1994 congressional elections, a debate emerged at a retreat at Camp David. Should the administration make overtures to working class white southerners who had all but forsaken the Democratic Party? The then-first lady took a less than inclusive approach.

"Screw 'em," she told her husband. "You don't owe them a thing, Bill. They're doing nothing for you; you don't have to do anything for them."

The statement -- which author Benjamin Barber witnessed and wrote about in his book, "The Truth of Power: Intellectual Affairs in the Clinton White House" -- was prompted by another speaker raising the difficulties of reaching "Reagan Democrats." It stands in stark contrast to the attitude the New York Democrat has recently taken on the campaign trail, in which she has presented herself as the one candidate who understands the working-class needs.

"I don't think [Obama] really gets it that people are looking for a president who stands up for you and not looks down on you," she said this week.

But those who were at the event say the 1995 episode fits into her larger viewpoint. As Harry Boyte, the director of the University of Minnesota's Center for Democracy and Citizenship who was at the retreat, told The Huffington Post: "[Hillary Clinton] sees herself as the champion of the oppressed, but there is always a kind of good guy versus bad guy mentality. The comment before that was that 'the Reagan Democrats are our enemies and they weren't on our side,' and she was agreeing with that comment. She said we should write them off: screw them."

A spokesperson for Clinton said the quote was taken out of context and did not reflect her true political philosophy. "This quote differs from the recollection of others who were in the room at the time this comment was allegedly made," said Jay Carson. "To be clear, that's not how she felt then and it's not how she feels now, and the proof is in how she has lived her life, the work she has done and the policies she has pushed and pursued over the last 35 years."

Asked to produce a witness who would say that Clinton had been misquoted, Carson wrote: "So, you've got two guys we've barely heard of remembering a verbatim quote from 13 years ago?... Sounds totally and completely reliable."

(Carson eventually put me in touch with a source who claimed to not have heard the quote -- see below). Barber's book was published in 2001.

Perhaps even more telling than Hillary Clinton's proclamation, however, were the words from her husband that followed. As reported by Barber, Clinton "stepped in, calm and judicious, not irritated, as if rehearsing an old but honorable debate he had been having with his wife for decades."

I know how you feel. I understand Hillary's sense of outrage. It makes me mad too. Sure, we lost our base in the South; our boys voted for Gingrich. But let me tell you something. I know these boys. I grew up with them. Hardworking, poor, white boys, who feel left out, feel that our reforms always come at their expense. Think about it, every progressive advance our country has made since the Civil War has been on their backs. They're the ones asked to pay the price of progress. Now, we are the party of progress, but let me tell you, until we find a way to include these boys in our programs, until we stop making them pay the whole price of liberty for others, we are never going to unite our party, never really going to have change that sticks.

If the tone and tenor of the above sounds familiar, it's because the message, Boyte says, is remarkably similar to what Obama was trying to convey in his now controversial remarks about small town America.

"Well, yeah, absolutely," said Boyte, when asked if Obama and Bill Clinton were expressing the same political viewpoint (Boyte said he and his organization are neutral in the presidential race). "I think Obama's better-or-worse versions of this have always been that people are complicated. It comes from an organizing perspective. You don't write off people, everyone is complicated. It just depends on the issue. And that's what Bill Clinton was saying. He was a sentimental populist."

Not to be lost in all this, as Boyte notes, is that Hillary Clinton has consistently been a "champion for the people who were helpless and powerless." But there is a political component to the mindset.

"Hillary Clinton has a very strong customer view: the citizen is the customer and the government the vendor," said Boyte. "You can see it in Mark Penn's frame. In fact, last Christmas she had an ad of herself writing checks to different groups."

Update: Jake Tapper, over at ABC, had highlighted the "screw em" quote back in October. His article was in reference to comments Sen. Clinton had made about Mississippi. Considering events this past week, the issue has taken on increased relevance.

Late Update: The Clinton campaign put me in touch with Don Baer, President Clinton's speech writer at the time, who had attended the same meeting. He says: "I don't remember anything along those lines, at all. And I certainly don't remember Senator Clinton saying anything like that... they have their recollections of that, that is their business. The conversation, from my perspective, was moderated in tone."

He did not, it should be noted, directly challenge the interpretations of Barber and Boyte.

Baer's comments came at roughly the same moment that The New Republic published a blog post by Alan Wolfe, a professor of political science at Boston College, who was also at the retreat and says he too heard the quote. Noting Carson's remark -- "So, you've got two guys we've barely heard of remembering a verbatim quote from 13 years ago?... Sounds totally and completely reliable" -- Wolfe writes: "Make that three. I was there. I hope people have heard of me. And Barber and Boyte have it right."

Original here

'D.C. Madam' sighs as jury finds her guilty

WASHINGTON (AP) -- A federal jury convicted a woman Tuesday of running a prostitution service that catered to members of Washington's political elite.


Deborah Jeane Palfrey will remain free on bail until her sentencing on July 24.

Deborah Jeane Palfrey, 52, sighed as the verdict was read.

She had repeatedly denied that the escort service engaged in prostitution, saying that if any of the women engaged in sex acts for money, they did so without her knowledge.

Palfrey caused a sensation last year when she announced that to raise money for her defense, she intended to sell her phone records to any news outlet willing to pay. Palfrey said her defunct business, Pamela Martin & Associates, was "a legal, high-end erotic fantasy service" that serviced elite clients.

She was convicted on all counts she faced: money laundering, using the mail for illegal purposes and racketeering.

Three of Palfrey's clients testified during the weeklong trial in U.S. District Court for the District of Columbia, explaining how they found the service, how often they called, what they were hoping for and whether they got it during their visits.

"When a man agrees to pay $250 for 90 minutes with a woman, what do most men expect in that time?" prosecutor Daniel Butler asked during closing arguments Monday. "In that context, it's pretty clear. Most men want sex."

Don't Miss

But the trial concluded without revealing many new details about the service or its clients. Sen. David Vitter, a Louisiana Republican, was among possible witnesses but did not take the stand.

Vitter has acknowledged being involved with Palfrey's escort service. But after issuing brief statements apologizing for "a very serious sin," he has avoided follow-up questions.

Harlan Ullman, a military strategist who created the concept of "shock and awe" that the United States used to open hostilities against Iraq, also did not testify.

Palfrey says Ullman was a regular client; Ullman has declined to discuss what he has called "outrageous allegations." Randall L. Tobias, who resigned as a deputy secretary of state after acknowledging to ABC News that he used Palfrey's service for massages, also did not testify.

Defense attorney Preston Burton argued that what went on during appointments was between the client and the escort. He compared Palfrey to a taxi dispatcher, who shouldn't be penalized for "the route the cab driver took."

Palfrey will remain free pending her sentencing July 24.

Prosecutors urged U.S. District Judge James Robertson to lock Palfrey up immediately, arguing that the verdict gives her a motive to flee. But the judge noted that Palfrey has never missed a court appearance.

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Permissible Assaults Cited in Graphic Detail

Thirty pages into a memorandum discussing the legal boundaries of military interrogations in 2003, senior Justice Department lawyer John C. Yoo tackled a question not often asked by American policymakers: Could the president, if he desired, have a prisoner's eyes poked out?

Or, for that matter, could he have "scalding water, corrosive acid or caustic substance" thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb? What about biting?

These assaults are all mentioned in a U.S. law prohibiting maiming, which Yoo parsed as he clarified the legal outer limits of what could be done to terrorism suspects as detained by U.S. authorities. The specific prohibitions, he said, depended on the circumstances or which "body part the statute specifies."

But none of that matters in a time of war, Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief.

The dry discussion of U.S. maiming statutes is just one in a series of graphic, extraordinary passages in Yoo's 81-page memo, which was declassified this past week. No maiming is known to have occurred in U.S. interrogations, and the Justice Department disavowed the document without public notice nine months after it was written.

In the sober language of footnotes, case citations and judicial rulings, the memo explores a wide range of unsavory topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another controversial Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."

Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.

Written opinions by the Office of Legal Counsel have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language. Yoo's 2003 memo has evoked strong criticism from legal academics, human rights advocates and military-law experts, who say that he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.

"Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit a president. It is an unconscionable document."

Yoo defends the memo as a "near boilerplate" argument in favor of presidential prerogatives, and says its fundamental assertions differ little from those made by previous presidents of both parties. In comments to The Washington Post and other news organizations, Yoo has also criticized the Justice Department for issuing new legal opinions that do not include detailed discussions of specific interrogation tactics, which he views as crucial to defining the boundaries of what is lawful.

"You have to draw the line," Yoo said in an Esquire magazine interview posted online this past week. "What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more -- we could have written it in a much more palatable way, but it would have been vague."

The 2003 memo includes long discussions of the relative illegality of a wide variety of coercive interrogation tactics, including a British technique in which prisoners are forced to stand in a spread-eagle position against a wall and an Israeli technique, called the Shabach, in which a suspect is hooded, strapped to a chair and subjected to powerfully loud music.

Various courts had declared both tactics to be inhumane, but not torture, Yoo noted. This meant that they were illegal under a provision of the Geneva Conventions that the administration said had no relevance to unlawful combatants in its custody.

In another passage, discussing the bounds of Eighth Amendment protections involving confinement conditions, Yoo concluded that "the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need." Yoo cited the need to prove "malice or sadism" on the part of an interrogator before he or she could be prosecuted.

The interrogation memo was considered a binding opinion for nine months until December 2003, when OLC chief Jack Goldsmith told the Defense Department to ignore the document's analysis.

In his 2007 book "The Terror Presidency," Goldsmith, who now teaches law at Harvard University, said that some of the memos written by Yoo and his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."

Douglas W. Kmiec, a Pepperdine University law professor who served as constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, said Yoo can be faulted "for not writing more narrowly." It is often better to "brush in hazy gray" rather than "spray paint in black and white," Kmiec said.

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So Much For The False “Activist Judges” Canard…

In a recent study of justices on the Supreme Court of the United States, guess which justices were the most "activist" in terms of willingness to wholly overturn or disregard precedents? I'll give you one guess:

A new study supports our fears: Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process....

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would.

So much for the conservative "legislating from the bench" canard of branding liberals as activists, eh? Despite the occasional lapse of honesty about what is going on with conservative jurists attempting to force their own worldview on the rest of us from the bench, the false branding really needs to be questioned. I agree with Dahlia Lithwick that the "conservative" brand needs a new name, and I kind of like her "re-activist judges" branding, but I'm not married to it. Suggestions?

Next time some pundit brings up those "liberal activist judges," we should all just laugh. A lot. Because the thought that folks like Scalia and Thomas aren't trying to influence policy from the bench? That's simply laughable.

PS -- Oh, the karma: look who is having difficulty finding a job after obfuscating and dodging for a living to provide Bush WHCYA? Guess "expert at saying 'I don't recall, Senator.' " isn't exactly in high demand these days, eh?

Original here

It’s Official: Bush Is Objectively The Most Hated President In History

1354270199_da9884fca3_m.jpgCongratulations to George W. Bush and the Republican Party for another historic milestone set by the Great Leader:

At 39 months in the doghouse, George W. Bush has surpassed Harry Truman's record as the postwar president to linger longest without majority public approval.

Bush hasn't received majority approval for his work in office in ABC News/Washington Post polls since Jan. 16, 2005 three years and three months ago. The previous record was Truman's during his last 38 months in office.

And the Torturer-in-Chief/Loser-of-Two-Wars has another 8 months to pad his record. Why all the BDS?

His rating specifically on handling the war in Iraq is equally poor — 33 percent approve, 65 percent disapprove — and on the economy it's even worse, with a record 70 percent disapproval.

It's the war and the economy, stupid. Good luck with that (R) next to your name, St. McCain. And every other Gooper for the next several election cycles for that matter.

And here's why St. McCain is really screwed:

Just 7 percent of Democrats approve of his work overall (a point from the low in this group) compared with 74 percent of Republicans. (Fewer Republicans, 59 percent, approve of his work on the economy, a career low.)

St. McCain can't run against Bush because he'll piss off the fraction of the population he desperately needs to win: the delusional Bush dead-enders known as the Republican base, who think everything is just awesome and King George is George Washington. My question is: how many wars does Bush have to lose, how bad does the economy have to get, how many US cities have to drown, how many laws does Bush have to break before Republicans finally disown this loser?

But this is what warms my heart. All those "average Americans" that David Brooks, George Will and David Broder are always talking about really, really hate Bush too.

The balance, as often is the case in U.S. politics, is tipped by the political center. Just 27 percent of independents and 23 percent of moderates approve of his job performance, the latter a career low for the president.

Anyway, I'll sign off now, because people are really tired of this Bush-bashing stuff.

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