The Five Most Shocking Justice Appointments

Rumor has it that BHO may break with tradition in making his first Supreme Court pick. He could nominate an African-American or Hispanic woman, or he could find someone who no pundit has on the short list. The justice he’s replacing, David Souter, came out of nowhere back in 1990—but he wasn’t unlikely enough to crack our list of the most surprising Supreme Court justices in history.

5. William Brennan (Served 1956-1990)
Surprise Factor: Catholic Democrats from New Jersey and Republican Presidents don’t typically see eye-to-eye.
Presidential Rationale: It was politics pure and simple—President Eisenhower was looking to curry favor with Northeastern voters in his bid for re-election that same year.
Legacy: Brennan proved to be one of the most influential liberal justices in the Court’s history; he voted with the majority in Roe v. Wade and wrote several opinions defending free speech. Eisenhower later admitted his selection had been a mistake, though Brennan’s liberal views arguably helped fuel conservative electoral turnout in the decades ahead.

4. Edward White (1894-1921)
Surprise Factor: A Louisiana native, White had served in the Confederate Army for two years before being captured by Union troops and held as a prisoner of war.
Presidential Rationale: President Grover Cleveland appointed White to the Court in as a compromise pick after his top two choices—both Northerners from New York—couldn’t get through Senate confirmations.
Legacy: White served on the Court for three decades and sided with the majority opinion in Plessy v. Ferguson that upheld segregation.

3. Tom C. Clark (1949-1967)
Surprise Factor: Can you imagine Jay Bybee—the author of the torture memo used by the Bush administration—on the Supreme Court? There’s precedent: during World War II, Clark served as the Justice Department’s civilian coordinator of the Japanese internment in California.
Presidential Rationale: Clark was a close friend of President Harry Truman.
Legacy: Truman called Clark’s appointment his “biggest mistake,” but not for the his role in the internment. As Truman put it, “It isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch.” That’s probably the best that can be said of Bybee, too.

2. James McReynolds (1914-1941)
Surprise Factor: McReynolds, a testy Southerner, had a knack for irritating or offending all who came in contact with him. Presidential Rationale: McReynolds is the quintessential example of the annoying, disruptive co-worker getting “kicked upstairs” by management. President Woodrow Wilson appointed him as Attorney General in 1913, and, when McReynolds proved that he did not play well with others in the administration, Wilson appointed him to the Court the following year. Legacy: For almost three decades, McReynolds was a reliably intolerant voice on the Court. An open anti-Semite and misogynist, he often refused to speak or listen to Louis Brandeis, the first Jew appointed to the Court, and he would frequently abandon the bench when a woman lawyer came before the Court to present a case. But, we do haveMcReynolds’ intolerance to thank for the no smoking policy in the Supreme Court building.

1. Hugo Black (1937-1971)
Surprise Factor: Because the inaptly named Justice Black joined the Ku Klux Klan while an aspiring young politician in Alabama (a move he later justified by saying “I would have joined any group if it helped get me votes”).
Presidential Rationale: While in the Senate, Black had been a loyal supporter of FDR’s New Deal. When FDR nominated Black for the Court in 1937, Black’s Klan membership was merely a rumor, and the Senate, despite reservations, voted to confirm him. Black was hastily sworn in two days later before the KKK connection was confirmed by an ambitious reporter the following month.
Legacy: Black enjoyed one of the longest tenures on the court and later penned the Court’s majority opinion in Korematsu v. United States, validating FDR’s interment of Japanese Americans.

Chertoff Gave CIA Green Light to Waterboard Prisoners

By Jason Leopold

In the summer of 2002, Michael Chertoff, then head of the Justice Department's Criminal Division, offered assurances to the CIA that its interrogators would not face prosecution under anti-torture laws if they followed guidelines on interrogation techniques approved by the Department’s Office of Legal Counsel.

Those guidelines stretched the rules on permissible treatment of detainees by narrowly defining torture as intense pain equivalent to organ failure or death. Specific interrogation techniques were gleaned from a list of methods that the U.S. military feared might be used against American soldiers if they were captured by a ruthless enemy.

Four years ago, when Chertoff was facing confirmation hearings to be Homeland Security chief, the New York Times cited three senior-level government sources as describing Chertoff’s Criminal Division as fielding questions from the CIA about whether its officers risked prosecution if they employed certain harsh techniques.

“One technique the CIA officers could use under circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning,” the Times reported.

In other words, Chertoff appears to have green-lighted the technique known as “waterboarding,” which has been regarded as torture since the days of the Spanish Inquisition.

Chertoff reportedly did object to some other procedures, such as death threats against family members and mind-altering drugs that would change a detainee’s personality, the Times reported. [NYT, Jan. 29, 2005]

During his Senate confirmation hearings in February 2005, Chertoff denied providing the CIA with legal guidance on the use of specific interrogation methods, such as waterboarding. Rather, he said he gave the agency broad guidance in response to questions about interrogation methods.

"You are dealing in an area where there is potential criminality," Chertoff said in describing his advice to the CIA. "You better be very careful to make sure that whatever you decide to do falls well within what is required by law."

Nevertheless, the evidence continues to build that Chertoff’s assurances gave CIA interrogators confidence they would avoid prosecution as long as they stayed within the permissive guidelines devised by deputy assistant attorney general John Yoo and his boss at the Office of Legal Counsel, Jay Bybee.

The Abu Zubaydah Case

Chertoff’s reported assurances to CIA agents appear to have led directly to the use of waterboarding against alleged al-Qaeda operative Abu Zubaydah in August 2002.

"The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002," according to the New York Times article.

The Abu Zubaydah case was the first time that waterboarding was used against a prisoner in the “war on terror,” according to Pentagon and Justice Department documents, news reports and several books written about the Bush administration’s interrogation methods.

In The One Percent Doctrine, author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.

"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"

The waterboarding of Abu Zubaydah was videotaped, but that record was destroyed in November 2005 after the Washington Post published a story that exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects.

John Durham, an assistant attorney general in Connecticut, was appointed special counsel last year to investigate the destruction 92 videotapes, a dozen of which the CIA confirmed showed Zubaydah and another detainee being tortured.

The CIA officials who pressed Chertoff to give assurances protecting CIA interrogators included former CIA General Counsel Scott Muller and his deputy, John Rizzo, according to the New York Times. Muller and Rizzo, who is now the CIA’s general counsel, are at the center of Durham’s probe.

The Times also reported that Chertoff participated in the drafting of the second August 2002 memo written by Bybee and Yoo and released last month. The memo described 10 interrogation methods that CIA interrogators could use against detainees. Those techniques included waterboarding, slamming prisoners heads against a wall, and keeping prisoners awake for up to 11 consecutive days.

Those interrogation techniques were derived from the Army and Air Force’s Survival, Evasion, Rescue, and Escape (SERE) training program. But those techniques were meant to prepare U.S. soldiers for abuse they might suffer if captured by a brutal regime, not as methods for U.S. interrogations.

ACLU Document Release

The American Civil Liberties Union has released more than 300 pages of documents showing that in 2003 military interrogators used methods they learned during SERE training against eight Afghanistan detainees held at the Gardez Detention Facility in southeastern Afghanistan.

Those methods included forcing a detainee to kneel outside in wet clothing, spraying the person with cold water, and punching and kicking a detainee over the course of three weeks.

One of the prisoners, an 18-year-old Afghan militia fighter named Jamal Naseer, later died. The documents released to the ACLU say his body was so severely beaten by his interrogators that it appeared to be a black and green color at the time of his death.

Amrit Singh, an ACLU attorney, said the SERE tactics that were approved by the Justice Department were never intended to be used by the U.S. government against its detainees.

The latest disclosures further erode claims by President Bush, Vice President Dick Cheney and then-Defense Secretary Donald Rumsfeld that prisoner abuses at Gardez – or the torture of prisoners at Abu Ghraib – were isolated acts by a few “bad apples.”

To the contrary, it appears that the policies approved by Bush and the assurances provided by Chertoff and others led to the atrocities at the CIA detention centers as well as the prisoner abuse at Abu Ghraib and Guantanamo Bay.

An action memorandum, dated Feb. 7, 2002, and signed by President Bush, stated that the Geneva Convention did not apply to members of al-Qaeda or the Taliban.

That, in turn, led Lt. Gen. Ricardo S. Sanchez, the top commander in Iraq to institute a “dozen interrogation methods beyond” the Army’s standard practice under the convention, according to a 2004 report on the prisoner abuse at Abu Ghraib prepared by a panel headed by James Schlesinger.

Sanchez said he based his decision on “the President's Memorandum,” which he said had justified "additional, tougher measures" against detainees, the Schlesigner report said.

Other prisoner abuses resulted from Rumsfeld’s verbal and written authorization in December 2002 allowing interrogators to use “stress positions, isolation for up to 30 days, removal of clothing and the use of detainees' phobias (such as the use of dogs),” according to a separate report issued by Army Maj. Gen. George R. Fay.

“From December 2002, interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation,” the Fay report said.

Mora’s Complaint

Rumsfeld’s approval of certain interrogation methods outlined in a December 2002 action memorandum was criticized by Alberto Mora, the former general counsel of the Navy.

“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.

Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of Mohammad al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt. It said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Geoffrey Miller, the commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.

Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

“At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’ that were authorized by U.S. Secretary of Defense Donald Rumsfeld,” Gutierrez said.

“Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller. These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”

Gutierrez’s claims about the type of interrogation al-Qahtani endured have since been borne out with the release of hundreds of pages of internal Pentagon documents describing interrogation methods at Guantanamo and at least two independent reports about prisoner abuse.

According to the Schlesinger report, orders signed by Bush and Rumsfeld in 2002 and 2003 authorizing brutal interrogations “became policy” at Guantanamo and Abu Ghraib.

The Justice Department's Office of Professional Responsibility (OPR) completed an investigation late last year to determine, among other issues, whether agency attorneys, including Chertoff, provided the White House and the CIA with poor legal advice when it said CIA interrogators could use harsh interrogation methods against detainees. The report remains classified.

Biden Reveals Location of Secret VP Bunker

Vice President Joe Biden, well-known for his verbal gaffes, may have finally outdone himself, divulging potentially classified information meant to save the life of a sitting vice president.

According to a report, while recently attending the Gridiron Club dinner in Washington, an annual event where powerful politicians and media elite get a chance to cozy up to one another, Biden told his dinnermates about the existence of a secret bunker under the old U.S. Naval Observatory, which is now the home of the vice president.

The bunker is believed to be the secure, undisclosed location former Vice President Dick Cheney remained under protection in secret after the 9/11 attacks.

Eleanor Clift, Newsweek magazine's Washington contributing editor, said Biden revealed the location while filling in for President Obama at the dinner, who, along with Grover Cleveland, is the only president to skip the gathering.

According to Clift's report on the Newsweek blog, Biden "said a young naval officer giving him a tour of the residence showed him the hideaway, which is behind a massive steel door secured by an elaborate lock with a narrow connecting hallway lined with shelves filled with communications equipment."

Clift continued: "The officer explained that when Cheney was in lock down, this was where his most trusted aides were stationed, an image that Biden conveyed in a way that suggested we shouldn't be surprised that the policies that emerged were off the wall."

On Monday, Biden's press office issued a statement in response to this story, denying the bunker report.

"What the Vice President described in his comments was not -- as some press reports have suggested -- an underground facility, but rather, an upstairs workspace in the residence, which he understood was frequently used by Vice President Cheney and his aides," said Biden's spokesperson Elizabeth Alexander. "That workspace was converted into an upstairs guestroom when the Bidens moved into the residence. There was no disclosure of classified information."

In December 2002, neighbors complained of loud construction work being done at the Naval Observatory, which has been used as a residence by vice presidents since 1974.

The upset neighbors were sent a letter by the observatory's superintendent, calling the work "sensitive in nature" and "classified" and that it was urgent it be completed "on a highly accelerated schedule."

Residents said they believed workers were digging deep into the ground, which would support Biden's report of a secret bunker, but officials never confirmed the purpose of the work performed.

The revelation is the latest from Biden, who has a long history of political blunders.

Most recently, he said in a televised interview that if a family member asked him about traveling he'd advise staying away from public transportation or confined spaces to avoid swine flu -- a remark described as "borderline fearmongering" by an airline spokesman.

Some on left souring on Obama

When President Barack Obama speaks to the Notre Dame commencement Sunday afternoon, television cameras will search the sea of graduates, looking for turned backs and defaced mortar boards that abortion opponents will likely use to register their disagreement with the president.

But the attention to protests from conservatives who don’t support Obama – and almost certainly never would – could obscure the far more significant political threat he now faces.

Barely four months into his presidency, Obama is confronting growing dissatisfaction among members of his liberal base, who feel spurned by a series of his early decisions on issues ranging from guns to torture to immigration to gay rights.

The list got longer last week as Obama reversed his earlier decision to release photos of detainees abused in U.S. military custody and announced plans to try some terror suspects before military commissions – though on the campaign trail he railed against earlier versions of the tribunals.

A few, like MSNBC’s Rachel Maddow, have even hurled the left’s ultimate epithet – suggesting that Obama’s turning into George W. Bush.

The building anger comes at a critical moment – just as Obama’s about to announce his choice for the Supreme Court. Fulfill their dreams of a “liberal Scalia,” a firebrand from the left, and much would be forgiven.

But if Obama opts instead for a decidedly centrist nominee aimed at winning a large number of Republican votes in the Senate, the growing concern could develop into something more politically dangerous.

“Even though I think he can get away with a more centrist candidate, he has to be careful not to be spitting in the eyes of his base,” said Laura Murphy, a lobbyist and former head of the American Civil Liberties Union’s Washington office.

“He’s got to be concerned about the cumulative impact dampening the energy and enthusiasm he needs for the midterm elections,” Murphy said. “If he doesn’t sustain a sizeable Democratic majority, he’s going to have a hard time finishing his very big agenda.”

“I could see the shrewdness of it,” John Brittain of the Lawyers’ Committee for Civil Rights Under Law, said, referring to the possibility Obama would turn to a middle-of-the-road candidate. “They would be kind of punting on the Supreme Court issue to focus on other issues. I think it would take a lot of the wind out of Obama’s sails—his popularity, not necessarily in polling numbers, but in spirit.”

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Brittain said such a nominee would be confirmed – but liberal groups would probably be slow to respond to future calls for help from Obama. “When he went to press the button next time to rally up people, I think there would still be a lingering issue,” Brittain said.

For liberals who viewed Obama as something of a savior after eight years of Bush, the discontents are piling up.

He has pushed gun control to the back burner, used the state secrets privilege to try to quash lawsuits over warrantless wiretapping, opposed a “truth commission” to investigate alleged torture and sought to deny some legal protections to detainees in Afghanistan.

And he’s made clear he’s in no rush to do immigration reform or repeal the military’s ban on openly gay servicemembers.

A growing number of organizations, bloggers and pundits, many of whom kept quiet about slights in Obama’s first few months, are now going public with their disillusionment.

“On torture, change we wanted to believe in feels like more of the same,” the American Civil Liberties Union and Human Rights Watch said in a joint statement Friday.

“I have a sickeningly familiar feeling in my stomach, and the feeling deepens with every interaction with the Obama team on [gay] issues. They want them to go away. They want us to go away,” the Atlantic’s Andrew Sullivan wrote last week, dismissing Obama’s pledge to end the "Don’t Ask Don’t Tell" policy as “toilet paper.”

Maddow accused Obama of doing a “blatant 180” on military commissions. On issues like the wiretapping suits, some critics have suggested Obama is even worse than Bush.

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Mindful of those concerns, Obama aides invited about half a dozen left-leaning organizations to a White House meeting Wednesday to discuss the Supreme Court pick. At the session, which lasted about an hour, groups such as People for the American Way, the National Council of La Raza, and the National Partnership for Women and Families offered their views on the criteria Obama should use to make his choice, according to participants who asked not to be identified. However, no names of potential candidates were discussed, they said. Neither Obama nor White House Counsel Greg Craig attended the meeting, the sources said.

The meeting came one day after the White House publicly expressed irritation at some lobbying—apparently that of gay, Latino and women’s activists publicly calling for a nominee from one or more of those groups. ““I don’t think that the lobbying of interest groups will help,” White House Press Secretary Robert Gibbs told reporters Tuesday. “I think in many ways lobbying can – and will –be counterproductive.”

Most of the names floated in the press as possible replacements for Justice David Souter have been well received by liberal groups. However, Obama aides have repeatedly noted that some names under active consideration have not been aired publicly. Liberal activists chafed at a report in POLITICO last week that the White House is considering Jim Comey, a No. 2 official at the Bush Justice Department. Some Obama aides apparently think Comey would be a viable choice because he stood up to the White House over wiretapping and criticized what he saw as efforts to politicize the Justice Department.

“He was deputy attorney general serving in Bush’s administration. He came in with the Bushies. What makes you think he’d be just an inch or two more to the center than [Chief Justice] Roberts?” Brittain asked. “I’d be greatly disappointed.”

The left’s leader for many past fights for and against Supreme Court nominees, Nan Aron of the Alliance for Justice, declined to discuss specific candidates, but said she’s hoping for a nominee who will be a “strong voice…and who believes in justice for all and not just for a few.”

Aron said Obama shouldn’t worry too much about how the right will assess the nomination. “My sense is that this president is enjoying great popularity, is an effective communicator and should pick the candidate of his choice,” she said. “This is a legacy issue for him.”

The current discontent with Obama among some on the left is not evenly distributed among liberal groups. Advocates for health care and the environment tend to be the most enthusiastic about the new president’s efforts. Immigrants’ rights groups are wary, while civil libertarians and human rights activists seem to be the most dejected.

Michael Meyers of the New York Civil Rights Coalition said many Obama supporters (with support from voices on the right) built him up to be more of a liberal icon than his public speeches and writings ever justified.

“They invested in Obama everything they wanted the next president to be. They thought, ‘He’s black, liberal, anti-Iraq War… urban, young.’ He was all of that and smart and he went to a radical church. They just knew,” Meyers said. “They exaggerated him. They saw him as a messiah. No president is a messiah.”

“He’s not the person that people thought he was,” Meyers said. “The left is finding that out and the right is finding that out.”

Obama has acknowledged that his own political backers often see in him what they want to see. “I serve as a blank screen on which people of vastly different political stripes project their own views,” he wrote in his 2006 book, “The Audacity of Hope.”

Meyers called “absurd” the arguments Obama used this week to explain his new opposition to disclosure of the detainee abuse photos. “He’s backtracking and the decisions he’s been making have disappointed civil rights people and civil libertarians,” the activist said. “While I’m disappointed, I’m not shocked.”

On Friday, Gibbs adamantly denied that Obama has modified his positions on issues such as military commissions and don’t-ask-don’t-tell.

Gibbs also ridiculed the notion that Obama was adopting Bush’s policies, noting the president is regularly accused of taking positions sharply at odds with his predecessor. “I’ll let you guys discern what inflection point -- what period of day that all changed,” Gibbs said sarcastically.

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