A year of controversy for the Supreme Court

The Brookings Institution held a briefing on U.S. Supreme Court rulings where high-profile cases, such as gun control, Guantanamo Bay detentions, and the death penalty, were discussed. Brookings Fellow Benjamin Wittes moderated the Judicial Issues Forum. Wittes explained that the Supreme Court has experienced a varied last couple of terms making it hard to discern an aggregate pattern from their rulings.

Stuart Taylor, a Nonresident Senior Fellow at The Brookings Institution, talked about the recent gun control case. When dealing with this case, Taylor explained that it was the first time in history that the Supreme Court definitively interpreted the Second Amendment. Taylor said that the Court produced a ruling which struck down the Washington, D.C. gun control law, holding the individual right to bear arms. However, Taylor also explained that this ruling has only limited impact because there aren’t many really tough gun control laws.

Taylor also talked about the Guantanamo Bay case. He explained that this case produced the first decision in which the Supreme Court ever overturned a previous decision made by the President during a time of war. Congress re-established habeas corpus at Guantanamo, but the Court also made it clear that the U.S. government is not holding a single person illegally at the base. Taylor said that even though the decision has been very controversial, the most important part of it is the fact that it didn’t require anyone at the base to walk free. Taylor explained that Congress needs to design a system open enough for the public to know how scary some detainess really are.

Randolph Moss, a partner at WilmerHale, talked about the lethal injection case regarding a prison in Kentucky and the Eighth Amendment. Moss explained that in most states lethal injection is administered with a process of three different drugs. The argument in this case said that this process was not the most humane way. However, Moss said that there was not enough evidence or facts produced to show that the inmate experienced any unnecessary pain.

Guantanamo Bay: John Yoo's biggest mistake?

The House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties met for a third time to discuss interrogation tactics authorized for Guantanamo Bay prison detainees and whether these tactics constituted torture. Committee member Jerry Nadler, Chairman of the Subcommittee( D-Ny.) presided over the hearing and said that the morals of the U.S. have been “besmirched” by techniques used by interrogators at Guantanamo. He said the more he learns about these techniques and the secretive way they were authorized, the more appalled he becomes. The witnesses included John Yoo, former Deputy Assistant Attorney General, and David Addington, Chief of Staff to the Vice President.

Yoo deflected a number of specific questions regarding his involvement with the creation of guidelines for interrogation techniques, specifically his involvement with the Bybee memo of 2008, which some committee members believed he was significantly involved in. He said that he was not at liberty to discuss certain issues because he was bound both by attorney/client privilege and the inability to reveal classified information. Yoo said that neither Congress nor the judicial system had provided guidelines which defined torture or acceptable interrogation techniques. He said that because of that he had no template to draw from while making the regulations for interrogation and the definitions of torture. He fell under immediate criticism from members of the committee for not consulting with the chairmen of the House and Senate Judiciary committees in 2002, who were Senator Arlen Specter (R-Penn.) and Congressmen James Sensenbrenner (R-Wisc.).

Congressman John Conyers (D-Mich.), Chairman of the House Judiciary Committee, showed his obvious frustration when both Yoo and Addington tried to evade his questions. He raised his tone of voice and interrupted the witnesses multiple times. He was not the only one to express frustration; Congressman Keith Ellison (D-Minn.) also raised his voice a number of times and demanded straight answers from the witnesses.

McCain campaign: Barack Obama, a typical liberal

Former Sen. Fred Thompson (R-Tenn.) while speaking on a conference call with reporters lambasted Sen. Barack Obama (D-Ill.) for being “a typical young liberal who did what was necessary to excel.” Thompson who was joined by McCain senior foreign policy advisor Randy Scheunemann joined in with Thompson in critiquing the senator from Illinois on his foreign policy.

The contention between the McCain and Obama campaigns came after the Supreme Courts 5-4 ruling that would give prisoners at Guantanamo Bay the right to challenge their detention in the American courts. While both McCain and Obama have pledged to close down Guantanamo Bay they differ on whether or not to conduct military tribunals. Sen. Obama supports allowing the detainees to use the court system while Sen. McCain would like to see the tribunals resurrected.

Thompson chastised Sen. Obama for supporting a measure that theoretically would allow Guantanamo detainees the right to the American courts. “Instead of approaching this from a military standpoint he wants it from a civil standpoint,” said Thompson. Thompson added that this was the same mentality and procedure under President Clinton and that it didn’t work.

Obama was also accused of being a flip flopper on the issue of the death penalty for Islamic extremists. Thompson said that Obama has vacillated on the issue and that he is just another “typical politician.”

National security served by 'legally suspect policies'

The investigation into the administration’s interrogation policies and legal justifications continued before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Chairman Jerrold Nadler was concerned that America’s national security and values have not been well served by ‘legally suspect policies.’

Witness Daniel Levin, former acting assistant attorney general to the Office of Legal Counsel, said that over time legal analysis regarding interrogation replaced policy analysis. He said many steps that the administration was taking, albeit legal, had costs which outweighed the benefits. Levin felt that some policies should have been adjusted. Levin also accepted full responsibility for any legal advice he gave and felt he should be held accountable if that advice turned out to be mistaken.

Witness Retired Colonel Lawrence B. Wilkerson said he knew how soldiers could ‘go astray in the heat of battle’ and he felt that leadership at the highest levels had fail in this instance. When questioned by Representative John Conyers, Jr. (D-Mich.) as to whether interrogation tactics were pushed from the top down, Wilkerson affirmed that it was his view.

Nadler also announced that one of the expected witnesses, Douglas Feith of Goodwin Procter LLP, had pulled out of attending the hearing at the last minute due to his unwillingness to be near one of the other witnesses present who was unnamed. Nadler deemed Feith's actions 'a fundamental disrespect for Congress and the American people.'He gave the assurance that Feith would be called before the Subcommittee to testify before too much time had elapsed.

Third Time's a Charm

Talk Radio News Service bureau chief Ellen Ratner writes about the personal meaning of the landmark Supreme Court ruling concerning the rights of detainees at Guantanamo Bay prison.

Click here to read her blog.