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Former Nixon White House counsel John Dean is troubled by the Military Commissions Act (MCA) (see October 17, 2006) currently under consideration in Congress. The MCA authorizes military tribunals instead of criminal court trials for suspected terrorists. Dean supported the idea of tribunals when they were first suggested in 2001, but, he writes: “[T]he devil… arrived later with the details. It never occurred to me (and most people) that Bush & Co. would design a system more befitting a totalitarian state than a democratic nation that once led the world by its good example.” After a previous tribunal procedure was struck down by the Supreme Court (see June 30, 2006), Bush sent another proposal to Congress in early September. Where the bill did not actively rewrite the Court’s findings, it ignored them altogether, Dean writes. Dean finds the law a stunning reversal of decades—centuries, in some instances—of US jurisprudence and international law, including its dismissal of Geneva protections, its retroactive protection for US officials who may have tortured detainees, and its dismissal of habeas corpus rights for detainees. Dean calls the proposed legislation “shameful,” and writes: “This proposal… is going to tell us a great deal about where we are as a nation, for as General [Colin] Powell said, ‘The world is beginning to doubt the moral basis of our fight against terrorism. To redefine [the Geneva Conventions] would add to those doubts.’ As will amending the war crimes law to absolve prior wrongs, denying detainees ‘a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,’ and enacting a law that insults the Supreme Court.” [FindLaw, 9/22/2006]

Entity Tags: US Supreme Court, Bush administration (43), Military Commissions Act, Colin Powell, Geneva Conventions, John Dean

Timeline Tags: Civil Liberties

Senator Barack Obama (D-IL) speaks out against the Military Commissions Act (MCA), which gives the federal government wide latitude to incarcerate and interrogate “terror suspects” without charge or due process of the law (see October 17, 2006). Obama says that “political considerations” for the upcoming midterm elections played a significant role in the timing of the bill, but “what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics. This is serious. If this was a debate with obvious ideological differences—heartfelt convictions that couldn’t be settled by compromise—I would understand. But it’s not.” Obama notes that in five years of the Bush administration’s system of military tribunals, “not one terrorist has been tried. Not one has been convicted. And in the end, the Supreme Court of the United States found the whole thing unconstitutional (see June 30, 2006), which is why we’re here today. We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.” Congress could have written and passed legislation that would have established “a real military system of justice that would sort out the suspected terrorists from the accidentally accused,” one that would be in line with domestic law and the Geneva Conventions. Instead, “politics won today.… The administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.” Meanwhile, Obama says, questions about the efficacy and legality of the Bush system of justice persist, al-Qaeda and the Taliban are regrouping “while we look the other way,” and the administration is bent on fighting a war in Iraq “that our own government’s intelligence says is serving as al-Qaeda’s best recruitment tool.… This is not how a serious administration would approach the problem of terrorism.” [US Senate, 9/28/2006]

Entity Tags: Military Commissions Act, Barack Obama, Bush administration (43)

Timeline Tags: Torture of US Captives

The newly passed Military Commissions Act (MCA—see October 17, 2006) gives the executive branch sweeping new powers sought by President Bush and Vice President Cheney since the 9/11 attacks, according to a New York Times analysis. Reporters Scott Shane and Adam Liptak write, “Rather than reining in the formidable presidential powers Mr. Bush and Vice President Dick Cheney have asserted since Sept. 11, 2001, the law gives some of those powers a solid statutory foundation. In effect it allows the president to identify enemies, imprison them indefinitely, and interrogate them—albeit with a ban on the harshest treatment—beyond the reach of the full court reviews traditionally afforded criminal defendants and ordinary prisoners. Taken as a whole, the law will give the president more power over terrorism suspects than he had before the Supreme Court decision this summer in Hamdan v. Rumsfeld that undercut more than four years of White House policy” (see June 30, 2006). The MCA “does not just allow the president to determine the meaning and application of the Geneva Conventions; it also strips the courts of jurisdiction to hear challenges to his interpretation.” Additionally, it gives Bush and his designees the absolute, unchallenged power to define anyone they choose as an “enemy combatant,” thereby stripping them of any traditional US legal protections and placing them under the far harsher and restrictive rubric of the MCA. “Over all, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president.” Law professor Bruce Ackerman notes, “The president walked away with a lot more than most people thought. [The MCA] further entrenches presidential power” and allows the administration to declare even an American citizen an unlawful combatant subject to indefinite detention. “And it’s not only about these prisoners,” says Ackerman. “If Congress can strip courts of jurisdiction over cases because it fears their outcome, judicial independence is threatened.” [New York Times, 9/30/2006]

Entity Tags: Scott Shane, Adam Liptak, Bruce Ackerman, Geneva Conventions, George W. Bush, Military Commissions Act, US Supreme Court, New York Times, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

President Bush signs the Military Commissions Act into law.President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. [White House, 10/17/2006] The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). [FindLaw, 10/9/2006] It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. [CBS News, 10/19/2006] However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007).
Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). [Savage, 2007, pp. 319, 322]
'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” [Washington Post, 10/19/2006] After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” [New York Times, 10/19/2006]
Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. [FindLaw, 10/9/2006] Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. [Savage, 2007, pp. 322]
Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. [FindLaw, 10/9/2006]
Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” [Consortium News, 10/19/2006]
Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.”
Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. [FindLaw, 10/9/2006]
CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. [FindLaw, 10/9/2006] The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. [Jurist, 10/4/2006] Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. [Salon, 5/22/2007]
No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. [FindLaw, 10/25/2006]
Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. [Dean, 2007, pp. 239-240]

Entity Tags: Human Rights Watch, Joanne Mariner, US Supreme Court, Patrick J. Leahy, Military Commissions Act, John Dean, George W. Bush, Scott Horton, Geneva Conventions, Bruce Ackerman, Dennis Hastert, American Civil Liberties Union, Amnesty International, Detainee Treatment Act, Arlen Specter, War Crimes Act, Barack Obama, Central Intelligence Agency, Bush administration (43), John Boehner

Timeline Tags: Civil Liberties

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

Exercising its new authority under the just-signed Military Commissions Act (MCA—see October 17, 2006), the Bush administration notifies the US District Court in Washington that it no longer has jurisdiction to consider 196 habeas corpus petitions filed by Guantanamo detainees. Many of these petitions cover multiple detainees. According to the MCA, “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future. The MCA is already being challenged as unconstitutional by several lawyers representing Guantanamo detainees. The MCA goes directly against two recent Supreme Court cases, Rasul v. Bush (see June 28, 2004) and Hamdan v. Rumsfeld (see June 30, 2006), which provide detainees with habeas corpus and other fundamental legal rights. Many Congressional members and legal experts say that the anti-habeas provisions of the MCA are unconstitutional. For instance, Senator Arlen Specter (R-PA) notes that the Constitution says the right of any prisoner to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” [Washington Post, 10/20/2006] Law professor Joseph Margulies, who is involved in the detainee cases, says the administration’s persistence on the issue “demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it.” Vincent Warren of the Center for Constitutional Rights, which represents many of the detainees, expects the legal challenges to the law will eventually wind up before the Supreme Court. [Washington Post, 10/20/2006]

Entity Tags: Center for Constitutional Rights, Arlen Specter, Bush administration (43), Vincent Warren, Military Commissions Act, Joseph Margulies

Timeline Tags: Civil Liberties

In a 93-1 vote, the US Senate passes the Food and Drug Administration Improvement Act of 2007 (H.R.2273), which grants the FDA broad new authority to monitor the safety of drugs after they are approved. It was based in part on the recommendations of a 2001 report by the Institute of Medicine (see September 22, 2001). The institute had been asked by the FDA to examine drug safety after it was revealed that the FDA and drugmaker Merck had permitted the drug Vioxx to stay on the market despite numerous indications that it increased patients’ risk of a heart attack. But the bill that is passed is much weaker than the original version, and ignores some of the institute’s most critical recommendations. A USA Today investigation will find that industry-friendly changes made to the bill were instigated by senators “who raised millions of dollars in campaign donations from pharmaceutical interests.” For example, 49 senators successfully defeated an effort that would have allowed US consumers to import lower-cost drugs from Canada and other industrialized countries. The senators who opposed the provision “received about $5 million from industry executives and political action committees since 2001—nearly three quarters of the industry donations to current members of the Senate,” USA Today found. Another factor contributing to the amendment’s failure was that President Bush said he would veto the bill if it permitted the imports. Also excised from the bill was language that would have give the FDA the authority to ban advertising of high-risk drugs for two years. This was one of the Institute of Medicine’s key recommendations. Senator Pat Roberts (R-Kan) argued that the change would restrict free speech. Drug interests have given Roberts $18,000 so far this year, and $66,000 since 2001. Sen. Judd Gregg (R-NH) was responsible for a change that reduced the agency’s power to require post-market safety studies. He insisted on limiting this authority so that the FDA could only target drugs when there’s evidence of harm. Gregg has received $168,500 from drug industry interests since 2001. The bill’s main sponsors—senators Edward Kennedy, (D-Mass) and Mike Enzi (R-Wyo)—agreed to water down a proposal that would have required all clinical drug studies be made public after meeting with industry officials. The senators agreed to change the language so that only studies submitted to the FDA would be available. Enzi and Kennedy have received $174,000 and $78,000, respectively, from drug interests since 2001. Amendments aimed at reducing industry conflicts of interest on FDA expert advisory panels were also stripped from the bill. One of those amendments would have made it more difficult for scientists to advise the FDA on drug approval applications from a company the scientist had received money from. Another would have required that FDA panels consist of no more than one member with financial ties to the drug industry. The Senate also rejected an amendment to establish an independent FDA office to monitor the safety of drugs after they are released on the market. The office that currently has this authority is the same one that approves new drugs, an arrangement that lawmakers and at least one FDA scientist (see November 18, 2004) believe is a conflict of interest. [WebMD Medical News, 5/9/2007; US Congress, 5/10/2007; USA Today, 5/14/2007]

Entity Tags: George W. Bush, Edward M. (“Ted”) Kennedy, Judd Gregg, Mike Enzi, US Food and Drug Administration, Pat Roberts

Timeline Tags: US Health Care

The Supreme Court, ruling in the Wisconsin Right to Life v. Federal Election Commission case, finds that some political advertisements can be exempted from the “electioneering communications” provision of the McCain-Feingold campaign reform act (see March 27, 2002). The case stems from attempts by an anti-abortion advocacy group, Wisconsin Right to Life (WRTL), to run ads asking viewers to contact their senators and urge them to oppose filibusters of judicial nominees. WRTL tried to run its ads during the 30 and 60-day “blackout” periods before the upcoming 2004 elections, but because it accepted corporate contributions and was itself incorporated, the McCain-Feingold restrictions prevented the ads from running. WRTL argued that the ads were not targeting candidates, but were strictly issue-related (see Mid-2004 and After). The case was initially dismissed, but the Supreme Court reversed that decision and remanded the case back to the lower courts. The Federal Election Commission (FEC) argued that the ads were intended to influence US Senate elections in Wisconsin, and thusly should be regulated by McCain-Feingold. A district court disagreed, ruling against the FEC and finding that the ads were “protected speech” (see January 30, 1976), though it limited its findings solely to the WRTL ads and specified that its ruling was not to apply to other cases. The FEC appealed the case to the US Supreme Court, which in a 5-4 decision finds that the district court’s ruling is valid. Chief Justice John Roberts writes the majority opinion, which establishes broad exemptions for advertisements that could be “reasonably” interpreted as being about legislative issues and not directed on behalf of, or against, a particular candidate. As long as “issue ads” do not contain the “functional equivalent” of express advocacy for or against a candidate, the Roberts opinion holds, and the advertisements are legal. The ads involve “core political speech” that is protected by the First Amendment, Roberts finds: “We give the benefit of the doubt to speech, not censorship.” Justice David Souter writes the dissenting opinion. Justices Antonin Scalia and Clarence Thomas write a concurring opinion that joins them with Roberts and the other two conservative justices, but in their concurrence, they say they would overturn the McCain-Feingold law in its entirety. [Connecticut Network, 2006 pdf file; Los Angeles Times, 6/26/2007; FindLaw, 2011; National Public Radio, 2012; Oyez (.org), 7/1/2012] Roberts is careful in the language of his majority opinion, writing that “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” He does not directly advocate for the overturning of the McCain-Feingold law, but referring to the 2003 McConnell decision that upheld the law (see December 10, 2003), he writes, “We have no occasion to revisit that determination today.” In 2012, reporter Jeffrey Toobin will write of Roberts’s use of the word “today,” “To those who know the language of the Court, the Chief Justice was all but announcing that five justices would soon declare the McCain-Feingold law unconstitutional.” [New Yorker, 5/21/2012] Toobin is referring to the 2010 Citizens United decision that will overturn most of the law (see January 21, 2010).

Entity Tags: John G. Roberts, Jr, Clarence Thomas, David Souter, Antonin Scalia, Federal Election Commission, Wisconsin Right to Life, US Supreme Court, Jeffrey Toobin

Timeline Tags: Civil Liberties

Steven Bradbury, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo on what a new interpretation of the Geneva Conventions’ Common Article 3 means for the CIA’s “enhanced interrogation program.” The Bradbury memo, released after months of debate among Bush officials regarding the ramifications of the recent Supreme Court decision extending Geneva protections to enemy combatants in US custody (see June 30, 2006), new legislation following the Court’s decision (see October 17, 2006), and an executive order on interrogations (see July 20, 2007), spells out what interrogation practices the CIA can use. The memo’s existence will not become known until after the 2009 release of four Justice Department torture memos (see April 16, 2009). Michael Ratner of the Center for Constitutional Rights will say upon learning of the memo, “The CIA still seems to want to get authority to interrogate people outside of what would be found to be a violation of the Geneva Conventions and the law.” Ratner will add that the memo raises questions about why the CIA felt it needed expanded authorities for interrogations. “What we don’t know is whether, after Hamdan, that 2007 memo modifies what the CIA is able to do in interrogation techniques,” he will say. “But what’s more interesting is why the CIA thinks it needs to use those interrogation techniques. Who are they interrogating in 2007? Who are they torturing in 2007? Is that they’re nervous about going beyond what OLC has said? These are secret-site people. Who are they? What happened to them?” [Washington Independent, 4/21/2009]

Entity Tags: Geneva Conventions, Bush administration (43), Center for Constitutional Rights, Central Intelligence Agency, US Supreme Court, Michael Ratner, US Department of Justice, Steven Bradbury, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives, Civil Liberties

Aziz Huq.Aziz Huq. [Source: American Prospect]Aziz Huq, an author and the director of the Brennan Center for Justice at New York University, writes that the Protect America Act (PAA-see August 5, 2007) came about as a result of what he calls “the most recent example of the national security waltz, a three-step administration maneuver for taking defeat and turning it into victory.” Step one is a court defeat for the administration, for example regarding detainees at Guantanamo (see June 28, 2004), or the overruling of military commissions in 2006 (see June 30, 2006). The second step, which comes weeks or months later, is an announcement that the ruling has created a security crisis and must be “remedied” through immediate legislation. The third and final step is the administration pushing legislation through Congress, such as the Detainee Treatment Act (see December 15, 2005) or the Military Commissions Act, that, Huq writes, “not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.”
Step One: FISC Refuses to Approve NSA's Surveillance Program - In January 2007, the administration announced that it was submitting the NSA’s domestic surveillance program to the Foreign Intelligence Surveillance Court (FISC), the secret court that issues FISA warrants for surveillance (see May 1, 2007). This was due to pending court cases threatening to rule the program in violation of FISA and the Fourth Amendment; the administration wanted to forestall, or at least sidestep, those upcoming rulings. In June, FISC refused to approve parts of the NSA program that involved monitoring overseas communications that passed through US telecom switches. Since a tremendous amount of overseas communications are routed through US networks, this ruling jeopardized the NSA’s previous ability to wiretap such communications virtually at will without a warrant. The administration objected to the NSA having to secure such warrants.
Step Two: The Drumbeat Begins - Months later, the drumbeat for new legislation to give the NSA untrammeled rights to monitor “overseas” communications, which not only traveled through US networks, but often began or ended with US citizens, began with appearances in the right-wing media by administration supporters, where they insisted that the FISC ruling was seriously hampering the NSA’s ability to garner much-needed intelligence on terrorist plots against the US. The White House and Congressional Republicans drafted legislation giving the NSA what it wanted, and presented it during the last week of the Congressional session, minimizing the time needed for scrutiny of the legislation as well as reducing the time available for meaningful debate.
Step Three: Passing a Law With Hidden Teeth - The legislation that would become the Protect America Act was carefully written by Bush officials, and would go much farther than giving the NSA the leeway it needed to wiretap US citizens. Instead, as Huq writes, “the Protect America Act is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight.” Democrats believed they had negotiated a deal with the administration’s Director of National Intelligence, Mike McConnell, to limit the law to addressing foreign surveillance wiretaps, but, Huq writes, “the White House torpedoed that deal and won a far broader law.” The law removes any real accountability over domestic surveillance by either Congress or the judiciary. Former CIA officer Philip Giraldi says that the PAA provides “unlimited access to currently protected personal information that is already accessible through an oversight procedure.” The law is part of the administration’s continual attempts to “eviscerat[e]” the checks and balances that form the foundation of US democracy.
Ramifications - The law includes the provision that warrantless surveillance can be “directed at a person reasonably believed to be located outside of the United States.” Huq writes that this is a tremendously broad and vague standard that allows “freewheeling surveillance of Americans’ international calls and e-mails.” He adds: “The problem lies in the words ‘directed at.’ Under this language, the NSA could decide to ‘direct’ its surveillance at Peshawar, Pakistan—and seize all US calls going to and from there.… Simply put, the law is an open-ended invitation to collect Americans’ international calls and e-mails.” The law does not impose any restrictions on the reason for surveillance. National security concerns are no longer the standard for implementing surveillance of communications. And the phrase “reasonably believe” is uncertain. The provisions for oversight are, Huq writes, “risibly weak.” Surveillance need only be explained by presentations by the Director of National Intelligence and the Attorney General to FISC, which has little room to invalidate any surveillance, and furthermore will not be informed of any specific cases of surveillance. As for Congress, the Attorney General only need inform that body of “incidents of noncompliance” as reported by the administration. Congress must rely on the administration to police itself; it cannot demand particulars or examine documentation for itself. The law expires in six months, but, Huq notes, that deadline comes up in the middle of the 2008 presidential campaign, with all the pressures that entails. And the law allows “the NSA to continue wielding its new surveillance powers for up to a year afterward.” The law, Huq writes, “does not enhance security-related surveillance powers. Rather, it allows the government to spy when there is no security justification. And it abandons all but the pretense of oversight.” [Nation, 8/7/2007]

Entity Tags: Mike McConnell, Detainee Treatment Act, Bush administration (43), Aziz Huq, Foreign Intelligence Surveillance Court, Military Commissions Act, National Security Agency, US Supreme Court, Philip Giraldi, Protect America Act

Timeline Tags: Civil Liberties

Author and reporter Charlie Savage observes that the Bush administration went far beyond the Reagan-era vision of a “unitary executive” (see April 30, 1986). He writes that the administration decided early on—perhaps before taking office in January 2001—to combine the “unitary executive” theory with the older concept of the “inherent powers” of the presidency (see 1901-1909 and June 30, 1950). Savage writes: “The new and improved Unitary Executive Theory said that Congress could not regulate any executive power, but the theory said nothing about the potential scope of such power. When fused, the two theories transformed any conceivably inherent executive power into an exclusive one. The president could do virtually anything, without any check by Congress.” Savage notes that most legal experts from across the political spectrum have roundly rejected both theories, as has the Supreme Court (see June 2, 1952 and June 1988). “The Bush-Cheney administration legal team regularly ignored the existence of such precedents in its secret advisory opinions” (see November 16-17, 1987 and September 25, 2001). The Bush administration also used an unusual reading of Alexander Hamilton’s discussion of the executive branch’s “unity” in the Federalist Papers, article 70, in which Hamilton advocated that the president’s powers should not be limited by a body of lawmakers. As Savage points out, most legal scholars call this reading “extremely misleading,” and note that Hamilton was writing about the Founding Fathers’ decision to have a single president instead of an executive committee. In fact, Hamilton explicitly repudiated the idea of a “unitary executive” in Federalist 69. Savage writes: “Over and over again, the presidentialists’ most important legal writings failed to make any mention of Federalist 69, even as they selectively quoted tidbits of Federalist 70—and quoted them out of context—as proof for their power to act beyond the limits of statutes passed by Congress.” Conservative law professor Richard Epstein calls the Bush administration’s legal theory “just wrong,” and its lawyers’ failure to acknowledge Federalist 69 “scandalous.” Epstein says: “How can you not talk about Federalist 69? All you have to do is go on Google and put in ‘Federalist Papers’ and ‘commander in chief,’ and it pops up.” [Savage, 2007, pp. 124-127]

Entity Tags: Charlie Savage, Richard Epstein, Bush administration (43)

Timeline Tags: Civil Liberties

The former lead prosecutor for terrorism tribunals at Guantanamo, Colonel Morris Davis, tells reporters that senior officials at the Pentagon pushed for convictions of high-profile detainees before the November 2008 presidential elections, placing politics ahead of duty. Davis says that the pressure from the Pentagon played a part in his decision to resign (see October 4, 2007). Davis says senior Defense Department officials discussed the “strategic political value” of putting some prominent detainees on trial in a September 2006 meeting (see September 29, 2006). Davis also says he objected to newly appointed senior officials’ insistence on using classified evidence in closed sessions of court, and to the military commissions being put under Pentagon general counsel William J. Haynes (see October 4, 2007).
'Less than Full, Fair and Open' - Davis had serious concerns about the use of classified evidence, due to worries it could be seen to be tainting trials. Davis says that since Brigadier General Thomas Hartmann’s arrival as legal adviser to the convening authority in the summer of 2007, Hartmann has attempted to speed up trials that will engage media attention and show the public that the process works (see July 2007). “He said, the way we were going to validate the system was by getting convictions and good sentences,” Davis says. “I felt I was being pressured to do something less than full, fair and open.” [Washington Post, 10/20/2007] Pentagon regulations require the legal adviser to be an impartial administration and not an arm of the prosecution.
'Political Commission' - Law professor Marc Falkoff, who represents some of the Guantanamo detainees, will observe that the interference Davis cites “is a patent violation of Rule 104 of the Manual for Military Commissions and Section 949b of the Military Commissions Act, both of which make it unlawful to ‘attempt to coerce or, by any unauthorized means, influence… the exercise of professional judgment by trial counsel or defense counsel.’” Falkoff notes that in the Supreme Court’s Hamdan verdict (see June 30, 2006), Justice Anthony Kennedy specifically disapproved of the first military commissions because they lacked “the safeguards that are important to the fairness of the proceedings and the independence of the court.” Davis says, “[A]s things stand right now, I think it’s a disgrace to call it a military commission—it’s a political commission.” [Jurist, 11/2/2007]

Entity Tags: William J. Haynes, US Supreme Court, Morris Davis, US Department of Defense, Anthony Kennedy, Marc Falkoff, Thomas Hartmann

Timeline Tags: Torture of US Captives, Civil Liberties, 2008 Elections

A poster promoting ‘Hillary: The Movie.’A poster promoting ‘Hillary: The Movie.’ [Source: New York Times]The conservative lobbying group Citizens United (CU—see May 1998 and (May 11, 2004)) releases a film entitled Hillary: The Movie. The film is a lengthy diatribe attacking the character and career of Senator Hillary Clinton (D-NY), a leading candidate for the Democratic presidential nomination. Large portions of the film are comprised of conservative critics launching attacks against the personalities and character of Clinton and her husband, former President Clinton. CU president David Bossie (see May 1998) says he based his film on a documentary, Fahrenheit 9/11, released in 2004 by liberal filmmaker Michael Moore (see August 6, 2004), and calls it “a rigorously researched critical biography” comparable to the material presented on political talk shows such as Meet the Press. [Washington Post, 3/15/2009; Moneyocracy, 2/2012] Bossie intended for the film to be released in late 2007 and impact the 2008 race in the same way that he believes Fahrenheit 9/11 impacted the 2004 race. A cable company made the film, at a cost of $1.2 million, available for free to viewers on “video on demand.” Bossie also scheduled a small theater run for the film, but his primary focus was always cable television and the accompanying television advertisements. Knowing the film will probably run afoul of campaign law, he hired lawyers, first James Bopp Jr. (a former member of the far-right Young Americans for Freedom—YAF—and the former general counsel for the National Right to Life Committee—see November 1980 and After) [New Yorker, 5/21/2012] and later Theodore B. Olson, the former solicitor general under the Bush administration. Olson will later say the film is “a critical biographical assessment” that provides “historical information about the candidate and, perhaps, some measure of entertainment as well.” The New York Times calls it “a scathingly hostile look at Mrs. Clinton” replete with “ripe voice-overs, shadowy re-enactments, and spooky mood music.” The film also contains interviews and material from mainstream media reporters, and interviews with figures such as former CIA agent Gary Aldrich, who wrote a “tell-all” book about the Clinton administration, and with Kathleen Willey, who has claimed that Bill Clinton once made an unwelcome sexual advance towards her. Reviewer Megan Carpentier of Radar Online will trounce the movie, saying that it “scrolls through more than a decade of press clippings and a treasure trove of unflattering pictures in its one-sided romp” and will advise potential viewers to watch it “while inebriated in the manner of your choosing, and only if you don’t pay $10 for the privilege.” [New York Times, 3/5/2009] Bossie claims the movie has nothing to do with the impending primary elections. CU intends to show the movie in a small number of theaters but primarily on “video on demand” cable broadcasts, with accompanying television advertisements. In return for a $1.2 million fee, a cable television consortium has agreed to make the movie freely available to its customers as part of what CU calls its “Election ‘08” series. (CU has another negative documentary on Clinton’s Democratic challenger Barack Obama in the works—see October 28-30, 2008—but apparently has no plans to air any documentaries on Republican candidate John McCain or any other Republican presidential candidates.) However, the Federal Election Commission (FEC) refuses to allow the film to be aired on cable channels, or advertised for theater release, because the FEC considers the film “electioneering” and thus subject to campaign finance law (see March 27, 2002) restrictions. Moreover, the film and its planned distribution are funded by corporate donations. [United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012] Bossie claims the film takes no position on Clinton’s candidacy, and says that if he had to vote between Hillary Clinton and Barack Obama, he would vote for Clinton. [New York Times, 3/5/2009]
Court Fight - Bopp, CU’s original lawyer, decides to pursue the same general aggressive course that he took in a recent successful Supreme Court campaign finance case, the Wisconsin Right to Life (WRTL) decision (see Mid-2004 and After). The Hillary film was envisioned from the outset to serve multiple purposes: to advance conservative ideology, damage Clinton’s presidential chances (despite Bossie’s claims), and generate profits. Bopp knows that the FEC would likely classify the film as a political advertisement and not a work of journalism or entertainment (see August 6, 2004), and therefore would fall under campaign law restrictions. Before the film is officially released, Bopp takes the film to the FEC for a ruling, and when the FEC, as expected, rules the film to be “electioneering communication” that comes under campaign law restrictions, Bopp files a lawsuit with the Washington, DC, federal district court. The court rules in favor of the FEC judgment, denying CU its request for a preliminary injunction against the FEC’s ruling. The court specifically finds that the WRTL decision does not apply in this case. “[I]f the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat,” the court states. The court also questions CU’s statement that the film “does not focus on legislative issues.… The movie references the election and Senator Clinton’s candidacy, and it takes a position on her character, qualifications, and fitness for office.” Film commentator Dick Morris has said of the film that it will “give people the flavor and an understanding of why she should not be president.” The court rules, “The movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” (During arguments, Bopp says that the film is much like what a viewer would see on CBS’s evening news show 60 Minutes, and Judge Royce Lamberth laughs aloud, saying: “You can’t compare this to 60 Minutes. Did you read this transcript?” Other judges find it problematic that one of the film’s central “issues” is its assertion that Clinton is, in Bopp’s words, “a European socialist,” but still claims not to be overtly partisan.) [Mother Jones, 1/13/2008; United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Supreme Court Appeal - CU appeals the court’s decision directly to the Supreme Court. Bossie soon decides to replace Bopp with Olson, a far more prominent figure in conservative legal circles. Toobin will write: “Ted Olson had argued and won Bush v. Gore (see 9:54 p.m. December 12, 2000), and was rewarded by President Bush with an appointment as solicitor general. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the justices. He knew how to win.” [Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Previous Attempt - In September 2004, Bossie and CU attempted, without success, to release a similar “documentary” supporting President Bush and attacking Democratic presidential candidate John Kerry (D-MA) on television, just weeks before the presidential election. The FEC turned down the group’s request. The FEC did allow the film to be shown in theaters (see September 8, 2004 and September 27-30, 2004).
'Ten-Year Plan' - Bopp will later reveal that the lawsuit is part of what he will call a “10-year plan” to push the boundaries of campaign finance law, and that he urged Bossie and other CU officials to use the documentary as a “test case” for overturning the body of law (see January 25, 2010).

Entity Tags: William Jefferson (“Bill”) Clinton, Kathleen Willey, Megan Carpentier, Theodore (“Ted”) Olson, New York Times, Michael Moore, John McCain, Royce Lamberth, James Bopp, Jr, Dick Morris, Gary Aldrich, Barack Obama, Bush administration (43), Hillary Clinton, Citizens United, David Bossie, Federal Election Commission, Clinton administration

Timeline Tags: Civil Liberties, 2008 Elections

A three-judge panel rules that the conservative advocacy group Citizens United (CU) must agree to reveal the identities of the donors that made its documentary on presidential candidate Hillary Clinton possible, if it intends to advertise the film. The film, entitled Hillary: The Movie, is considered by the Federal Election Commission (FEC) to be “electioneering,” or the communication of partisan political views, as opposed to a more objective documentary as CU claims. CU challenged the FEC in court in a December 2007 filing, claiming that “issue-oriented television ads are protected by the First Amendment and should not be subject to disclosure requirements under McCain-Feingold campaign finance law,” referring to the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002). Under the BCRA, partisan political communications such as the CU film are subject to blackout periods in a specific period before elections. The Supreme Court ruled that so-called “issue ads” can be run by partisan political groups such as CU (see Mid-2004 and After), but the FEC has ruled that such “issue ads” must include disclaimers, and the producers of the ads must file reports that name the ads’ contributors. CU is challenging such disclosure requirements, saying that advertisements for the Clinton film are commercial in nature and not political, and therefore protected under the First Amendment from being forced to disclose donor information. The court rules otherwise. [United States District Court for the District Of Columbia, 1/15/2008 pdf file; Washington Times, 1/16/2008; Media Matters, 1/16/2008]

Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Citizens United, Federal Election Commission, US Supreme Court

Timeline Tags: Civil Liberties, 2008 Elections

Navy Lieutenant Commander Brian Mizer, the lawyer for Guantanamo detainee Salim Hamdan, says that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 presidential campaign. In a court brief filed on this day, Mizer describes a September 29, 2006 meeting at the Pentagon where Deputy Defense Secretary Gordon England asked lawyers to consider 9/11-related prosecutions in light of the upcoming presidential campaign. “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,” England is quoted as saying (see September 29, 2006). Pentagon spokesman Bryan Whitman refuses to discuss specifics of the case, but says that the Pentagon “has always been extraordinarily careful to guard against any unlawful command influence” in upcoming military commissions trials. Mizer says that because of England’s instructions, and other examples of alleged political interference, his client cannot get a fair trial. Three weeks before England’s observation about the “strategic political value” of the trials, President Bush disclosed that he had ordered the CIA to transfer “high-value detainees” from years of secret custody to Guantanamo for trial.
Issues 'Scrambled' - Attorney Eugene Fidell, president of the National Institute of Military Justice, says the Hamdan motion exposes the problem of Pentagon appointees’ supervisory relationship to the war court. “It scrambles relationships that ought to be kept clear,” he says. England’s statement, says Fidell, is “enough that you’d want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.” Susan Crawford is the White House-appointed supervisor for the court proceedings; England is a two-term White House appointee who has supervised the prison camps’ administrative processes. Crawford, England, and other White House officials have crossed the legal barriers that separate various functions of a military court, Mizer argues. Mizer plans to call the former chief prosecutor for the Guantanamo trials, Morris Davis (see October 4, 2007), who first brought the England remark to light. Davis resigned his position after contending that political influence was interfering with the proper legal procedures surrounding the prosecution of accused war criminals.
Motion for Dismissal - Mizer’s motion asks the judge, Navy Captain Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration officials have exerted “unlawful command influence.” Hamdan is a former driver for Osama bin Laden whose lawyers successfully challenged an earlier war court format (see June 30, 2006). Hamdan’s case is on track to be the first full-scale US war crimes tribunal since World War II. [Miami Herald, 3/28/2008]

Entity Tags: Michael Hayden, Eugene R. Fidell, Central Intelligence Agency, Bryan Whitman, Brian Mizer, George W. Bush, Gordon England, Keith Allred, US Department of Defense, Salim Ahmed Hamdan, Susan Crawford, Morris Davis, Osama bin Laden

Timeline Tags: Torture of US Captives, Civil Liberties, 2008 Elections

The Supreme Court rules 5-4 that foreign terror suspects held without charge at Guantanamo Bay have the Constitutional right to challenge their detention in US civilian courts. The Court splits along ideological lines, with the more liberal and moderate members supporting the finding, and the more conservative members opposing it. Justice Anthony Kennedy, considered a centrist, writes the ruling. He writes, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” The ruling specifically strikes down the portion of the Military Commissions Act (see October 17, 2006) that denies detainees their habeas corpus rights to file petitions. [Associated Press, 6/12/2008; Associated Press, 6/12/2008] The case is Boumediene v. Bush, and was filed in the Supreme Court in March 2007 on behalf of Lakhdar Boumediene, a Bosnian citizen held in the Guantanamo camp since 2002 (see January 18, 2002). It was combined with a similar case, Al Odah v United States (see October 20, 2004). [Oyez (.org), 6/2007; Jurist, 6/29/2007]
'Stinging Rebuke' for Bush Administration - The ruling is considered a serious setback for the Bush administration (a “stinging rebuke,” in the words of the Associated Press), which insists that terror suspects detained at Guantanamo and elsewhere have no rights in the US judicial system. It is unclear whether the ruling will lead to prompt hearings for detainees [Associated Press, 6/12/2008; Associated Press, 6/12/2008] ; law professor James Cohen, who represents two detainees, says, “Nothing is going to happen between June 12 and January 20,” when the next president takes office. Justice Department spokesman Peter Carr says the decision will not affact war crimes trials already in the works: “Military commission trials will therefore continue to go forward.”
Scalia: Ruling Will 'Cause More Americans to Be Killed' - President Bush says he disagrees with the ruling, and says he may seek new legislation to keep detainees under lock and key. Justice Antonin Scalia, the leader of the Court’s ideological right wing, agrees; in a “blistering” dissent, he writes that the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” In his own dissent, Chief Justice John Roberts argues that the ruling strikes down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Joining Scalia and Roberts in the minority are Justices Samuel Alito and Clarence Thomas. Voting in the majority are Kennedy and Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens.
Military Tribunals 'Doomed,' Says Navy Lawyer - Former Navy lawyer Charles Swift, who argued a similar case before the Supreme Court in Hamdan v Rumsfeld (see June 30, 2006), says he believes the ruling removes any legal basis for keeping Guantanamo open, and says that military tribunals are “doomed.” The entire rationale for Guantanamo and the tribunals, Swift says, is the idea that “constitutional protections wouldn’t apply.” But now, “The court said the Constitution applies. They’re in big trouble.” Democrats and many human rights organizations hail the ruling as affirming the US’s commitment to the rule of law; some Republican lawmakers say the ruling puts foreign terrorists’ rights over the safety of the American people. Vincent Warren, the head of the Center for Constitutional Rights, says: “The Supreme Court has finally brought an end to one of our nation’s most egregious injustices. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.” [Associated Press, 6/12/2008]

Entity Tags: Stephen Breyer, Vincent Warren, US Supreme Court, Samuel Alito, Military Commissions Act, Peter Carr, Bush administration (43), Antonin Scalia, Anthony Kennedy, Charles Swift, Clarence Thomas, David Souter, George W. Bush, Lakhdar Boumediene, Ruth Bader Ginsburg, John Paul Stevens, James Cohen, John G. Roberts, Jr, US Department of Justice

Timeline Tags: Civil Liberties

Susan Crawford.Susan Crawford. [Source: Susan Crawford / Washington Post]The senior Bush administration official in charge of bringing Guantanamo Bay detainees to trial rules that the US military tortured a detainee, and therefore the US cannot try him. Susan Crawford, the convening authority of military commissions, says that the US tortured Mohamed al-Khatani, a Saudi national accused of planning to participate in the September 11 attacks (see August 4, 2001). Crawford says al-Khatani was interrogated with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, and which cumulatively left him in a “life-threatening condition.” Crawford says: “We tortured [al-]Khatani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Crawford is a retired judge who served as the Army’s general counsel during the Reagan administration and the Pentagon’s inspector general during the first Bush administration. She is the first senior official of the current Bush administration to publicly state that a detainee was tortured while in US custody.
Cumulative Effect Equals Torture - None of the individual techniques used against al-Khatani were torturous in and of themselves, Crawford says, but the cumulative effect—particularly their duration and the deleterious effect on al-Khatani’s health—combined to constitute torture. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she says. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture. Al-Khatani has been in US custody since December 2001 (see December 2001), and was interrogated from November 2002 through January 2003 (reports of the exact dates vary—see August 8, 2002-January 15, 2003 and October 11, 2002). He was held in isolation until April 2003. “For 160 days his only contact was with the interrogators,” Crawford says. “Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister.” He was threatened with a military dog named Zeus. He “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation,” Crawford says, and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” according to reports from his interrogations. He was twice hospitalized with bradycardia, a potentially lethal condition where the heartbeat drops to abnormally low levels.
Ruling Halts Future Prosecution against al-Khatani - Crawford dismissed war crimes charges against al-Khatani in May 2008 (see May 13, 2008). In November, military prosecutors said they would refile charges against al-Khatani, based on subsequent interrogations that did not employ harsh techniques (see November 18, 2008). But Crawford says that she would not let any such prosecutions go forward. However, Crawford is not unaware of the potential danger posed by letting him go free. “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001,” Crawford says. “He’s a muscle hijacker.… He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’” Al-Khatani’s civilian lawyer, Gitanjali Gutierrez, says, “There is no doubt he was tortured.” Gutierrez says: “He has loss of concentration and memory loss, and he suffers from paranoia.… He wants just to get back to Saudi Arabia, get married and have a family.” Al-Khatani “adamantly denies he planned to join the 9/11 attack,” she adds. “He has no connections to extremists.” Gutierrez says she thinks Saudi Arabia has an effective rehabilitation program and Khatani ought to be returned there. [Washington Post, 1/14/2009; New York Times, 1/14/2009] His lawyers at the Center for Constitutional Rights describe him as a broken, suicidal man who can never be prosecuted because of his treatment at the hands of his captors. [New York Times, 1/14/2009]
Sympathetic but Unbending - Crawford, a lifelong Republican, says she sympathizes with the situation faced by the Bush administration and the CIA after the 9/11 attacks. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she acknowledges. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.” Noting that the 2006 Hamdan v. Rumsfeld case (see June 30, 2006) disallowed torture but allowed for “coercive interrogation techniques,” Crawford says even those techniques should not be allowed: “You don’t allow it in a regular court.” Crawford says she is not yet sure if any of the other five detainees accused of participating in the 9/11 plot, including their leader, Khalid Shaikh Mohammed, were tortured, but she believes they may have been. “I assume torture,” she says, and notes that CIA Director Michael Hayden has publicly confirmed that Mohammed was one of three detainees subjected to waterboarding, a technique classified by law as torture. Crawford has not blocked prosecution of the other five detainees. Ultimately, she says, the responsibility for the farrago of illegal detentions and torture rests with President Bush. He was right to create a system to try suspected terrorists, she says, but the implementation was fatally flawed. “I think he hurt his own effort.… I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.… We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.” [Washington Post, 1/14/2009]
Rules Change - Pentagon spokesman Geoff Morrell says that the Hamdan case changed the rules, and thus retroactively classified al-Khatani’s treatment as torture. “The [Defense] Department has always taken allegations of abuse seriously,” he says. “We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohamed al-Khatani, the alleged 20th hijacker. They concluded the interrogation methods used at [Guantanamo], including the special techniques used on Khatani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on al-Khatani, although permissible at the time, are no longer allowed in the updated Army field manual.” [Washington Post, 1/14/2009]
Prosecutors Unprepared - When Crawford came to Guantanamo as convening authority in 2007, she says “the prosecution was unprepared” to bring cases to trial. Even after four years of working possible cases, “they were lacking in experience and judgment and leadership.” She continues: “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” It took over a year, and the intervention of Deputy Defense Secretary Gordon England, for prosecutors to turn over possibly exculpatory evidence to defense lawyers, even though the law requires that such evidence be turned over immediately. The entire system at Guantanamo is a blot on the reputation of the US and its military judicial system, she says: “There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality.” The system she oversees cannot function now, she believes. “Certainly in the public’s mind, or politically speaking, and certainly in the international community” it may be forever tainted. “It may be too late.” [Washington Post, 1/14/2009]

Entity Tags: Susan Crawford, Gordon England, Gitanjali Gutierrez, George W. Bush, Geoff Morrell, Central Intelligence Agency, Khalid Shaikh Mohammed, Bush administration (43), Center for Constitutional Rights, Mohamed al-Khatani, US Department of Defense, Michael Hayden

Timeline Tags: Torture of US Captives

Neal Katyal.Neal Katyal. [Source: PBS]Georgetown law professor Neal Katyal is to be named the Justice Department’s deputy solicitor general. Katyal successfully argued for the defense in the landmark Hamdan v. Rumsfeld trial before the Supreme Court (see June 30, 2006). Legal Times reporter Joe Palazzolo writes, “Katyal’s appointment is another strong signal of President-elect Barack Obama’s intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration.” The Hamdan case, “which marked Katyal’s first appearance before the high court, was a stinging rebuke to [President Bush’s] broad assertion of wartime power.” Katyal’s boss, Harvard Law School dean Elena Kagan, was named earlier in the month. Katyal was incoming Attorney General Eric Holder’s national security adviser in the Justice Department from 1998 to 1999, when Holder was deputy attorney general for the Clinton administration. Katyal also served as one of the co-counsels for Vice President Gore in the Supreme Court election dispute of December 2000. He once clerked for Supreme Court Justice Stephen Breyer. [Legal Times, 1/17/2009]

Entity Tags: US Department of Justice, Elena Kagan, Neal Katyal, Joe Palazzolo

Timeline Tags: Torture of US Captives, Civil Liberties

Officials for the incoming Obama administration are dismayed to find that the task of closing Guantanamo Bay, one of President Obama’s first orders as president (see January 22, 2009), is going to be much harder than anticipated, because the records and details of the approximately 245 prisoners in custody are in terrific disarray. Obama officials, barred from examining classified records on the detainees until the inauguration, also find that many of the prisoners have no comprehensive case files at all. What information that does exist on the detainees is, according to a senior Obama official, “scattered throughout the executive branch.” Most detainees have little more than a dossier containing brief summaries of information, and lack any sort of background or investigative information that would be required for federal prosecutions. Obama named a Cabinet-level panel to review each case individually before the base is to be closed in a year, and those panel members will now have to spend weeks and perhaps months hunting down and correlating relevant material.
'Food Fights' among Bush Agencies - Officials from the former Bush administration admit that the files are incomplete, and that no single government office was tasked with keeping the information on Guantanamo detainees together. They blame the CIA and other intelligence agencies for not adequately sharing information, and add that the Bush administration’s focus was more on detention and interrogation, and much less on putting together information for future prosecutions. A former Pentagon official says that “regular food fights” between competing government agencies over the sharing of information contributed to the lack of coherent and consistent files. (A CIA official denies that the agency ever balked at sharing information with other governmental agencies, and says the Defense Department was more likely to be responsible for laspes in information.)
Former Bush Officials Say Obama Officials 'Look[ing] for Excuses' - However, other former Bush officials say the Obama team is trying to “look for excuses” instead of dealing with the complexities of the issues involved. Obama officials, after promising quick solutions, are now “backpedaling and trying to buy time” by blaming its predecessor, according to a former senior Bush official. He says that “all but about 60… are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people,” and the Obama administration will come to the same conclusion as Bush officials: that they need to stay in detention without trial or charges.
Files 'Not Comprehensive,' Problem Noted in Previous Judicial Proceedings - But Obama officials say they want to make their own judgments. A senior Obama official says: “The consensus among almost everyone is that the current system is not in our national interest and not sustainable. [But] it’s clear that we can’t clear up this issue overnight” in part because the files “are not comprehensive.” Justice Department lawyers claim that after the Supreme Court ruled detainees have habeas corpus rights (see June 30, 2006), Bush officials were “overwhelmed” by the sudden need to gather and correlate information and material. In one federal filing, the Justice Department told a court that the record for a particular detainee “is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case.” In another filing, Justice Department officials told a court that “defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis.” Some former military officials say that evidence gathered for military commissions trials was scattered and incomplete. One former Guantanamo prosecutor, Darrel Vandeveld, says evidence was “strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks.” He says he once accidentally found “crucial physical evidence” that “had been tossed in a locker located at Guantanamo and promptly forgotten.” [Washington Post, 1/25/2009] Vandeveld says that evidence at Guantanamo was often so disorganized “it was like a stash of documents found in a village in a raid and just put on a plane to the US.” [United Press International, 1/14/2009]
Prosecutors Lacked Evidence Necessary for Prosecutions, Says Senior Official - “A prosecutor has an ethical obligation to review all the evidence before making a charging decision,” says Susan Crawford, the convening authority for the military commissions. “And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” Crawford has stated that another detainee was tortured while at Guantanamo (see January 14, 2009). [ABA Journal, 1/14/2009]
Defense Department: Information There, but Scattered - Pentagon spokesman Geoff Morrell says the files are in good order: “Fundamentally, we believe that the individual files on each detainee are comprehensive and sufficiently organized,” however, “in many cases, there will be thousands of pages of documents… which makes a comprehensive assessment a time-consuming endeavor.… Not all the documents are physically located in one place,” but most are available through a database. “The main point here is that there are lots of records, and we are prepared to make them available to anybody who needs to see them as part of this review.” [Washington Post, 1/25/2009]

Entity Tags: US Department of Justice, Susan Crawford, Bush administration (43), US Department of Defense, Central Intelligence Agency, Geoff Morrell, Obama administration, Darrel Vandeveld

Timeline Tags: Civil Liberties

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

Reflecting on the Bush administration’s decision to create “military commissions” to try terror suspects (see November 13, 2001), John Bellinger, the former legal adviser to the National Security Council during much of the Bush administration, says: “A small group of administration lawyers drafted the president’s military order establishing the military commissions, but without the knowledge of the rest of the government, including the national security adviser, me, the secretary of state, or even the CIA director. And even though many of the substantive problems with the military commissions as created by the original order have been resolved by Congress in response to the Supreme Court’s decision in the Hamdan case (see June 30, 2006), we have been suffering from this original process failure ever since.” [Vanity Fair, 2/2009]

Entity Tags: Condoleezza Rice, Bush administration (43), Colin Powell, US Supreme Court, George J. Tenet, National Security Council, John Bellinger

Timeline Tags: Civil Liberties

The announcement that Supreme Court Justice David Souter is retiring is already sparking a tremendous fundraising effort among conservative opposition groups, according to the Congressional Quarterly. “This is a nuclear weapon for the conservatives out there,” says conservative fundraiser Dan Morgan. “When you do fundraising, there’s an emotional component in this, and boy the emotion is there magnified times 100.” President Obama is expected to choose a replacement for Souter who is somewhat left of center, a choice that will be portrayed by right-wing groups as a threat to their positions on abortion, gun rights, gay marriage, and property rights, among other “hot-button” social and legal issues (see May 26, 2009). The upshot: lots of money gathered to oppose Obama’s prospective nominee. “Although Souter may be a more difficult case to make as his voting record is center-left, it does open the door for discussion of who, and how left a replacement, President Obama may choose,” says veteran Republican fundraiser Linus Catignani. “It also gives clarity to the power of the presidency and generates lots of chatter regarding the fact that Obama may make up to four replacements in short order. That obviously paints a very scary picture for many conservatives.” Catignani says that when conservative Justices John Roberts and Samuel Alito (see September 29, 2005 and October 31, 2005 - February 1, 2006) were nominated, Republican fundraisers used them as touchstones for their efforts to gather money—that time in the interest of promoting and defending the nominees. Democrats used their nominations to raise funds in opposition, much as Republicans are doing now, and Democrats will use the nomination to raise funds in defense of Obama’s nominee. Souter’s replacement will energize and invigorate a flagging and dispirited conservative base, says former Democratic National Committee Chairman Steve Grossman. “This can be a catalyst properly handled that can get people back into a sense of stakeholdership.” It can also be used to energize Democrats to fund efforts to thwart the Republicans’ own efforts to derail the nomination. Morgan says: “The Supreme Court is great. That’s going to be mail, that’s going to be phone calls. The clients I work with are in meetings already. There are letters being written already.” [Congressional Quarterly, 5/1/2009]

Entity Tags: Linus Catignani, Barack Obama, David Souter, Sonia Sotomayor, Dan Morgan, Steve Grossman, US Supreme Court

Timeline Tags: Civil Liberties

New Republic legal correspondent Jeffrey Rosen, a law professor at George Washington University, writes an analysis of appeals court judge Sonia Sotomayor, considered by many to be a leading candidate to replace retiring Justice David Souter on the Supreme Court.
Rose from Poverty to Consideration for High Court - Rosen gives a brief biographical sketch of Sotomayor, whom he labels as a “compelling” candidate both for her legal accomplishments and her life story. Sotomayor is the daughter of poor Puerto Rican immigrants, grew up in the South Bronx, and graduated with high academic honors from Princeton and Yale. She has served as a prosecutor, a corporate litigator, and a judge. If nominated and confirmed, Sotomayor would be the Court’s first Hispanic member and only its third female member. She has the support of both New York senators, Democrats Charles Schumer and Kirsten Gillibrand.
Conflicting Opinions Largely from Anonymous Sources - Rosen notes that her former clerks praise her as “demanding but thoughtful” and “commit[ted] to legal fairness,” a “rule-bound pragmatist—very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background.” Rosen quotes several anonymous sources—“nearly all… former law clerks… or former federal prosecutors in New York”—who, he says, question “her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” According to one former law clerk, Sotomayor is “not that smart and kind of a bully on the bench,” egotistical, and “domineering.” In contrast, one of his named sources, fellow Second Circuit appeals court judge Jose Cabranes, said of her, “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.” Anonymous sources tell Rosen that Sotomayor is more apt to quibble with a colleague’s grammar and syntax rather than the focus of their legal arguments. Another former clerk praises Sotomayor for being tough-minded and “impressive.” Rosen admits that he has not read enough of Sotomayor’s opinions “to have a confident sense of them,” nor has he “talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement—they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard.” Rosen concludes that President Obama would be taking an unnecessary “gamble” by nominating her to the high court. [New Republic, 5/4/2009]
Repercussions of Analysis - Rosen’s column triggers several demeaning characterizations of Sotomayor in the conservative press (see May 4, 2009 and May 5, 2009), characterizations that will intensify when she is nominated for the Court (see May 26, 2009). His use of anonymous sources to base his negative coverage will be repudiated by a number of critics (see May 5, 2009).

Entity Tags: Charles Schumer, Kirsten Gillibrand, Sonia Sotomayor, US Supreme Court, Jose Cabranes, Jeffrey Rosen

Timeline Tags: Civil Liberties, Domestic Propaganda

Atlantic columnist Ta-Nehisi Coates lambasts law professor Jeffrey Rosen for his recent analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009). Citing Rosen’s line, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths,” Coates responds: “Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, his piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.” She also slams her Atlantic colleague Marc Ambinder’s criticisms of Sotomayor (see May 5, 2009), noting, “You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck.” [Atlantic Monthly, 5/5/2009] Former civil litigator Glenn Greenwald joins Coates in criticizing the early attacks on Sotomayor. Greenwald calls Rosen’s reliance on anonymous sources to attack Sotomayor’s character and professional conduct “shoddy, irresponsible, and… intellectually irresponsible,” and cites several instances where Rosen’s reporting has been countered by sources willing to go on the record. Greenwald writes of his amazement at how quickly Sotomayor has been “transformed in conventional wisdom, largely as a result of Rosen’s piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.” Greenwald writes that he twice faced Sotomayor in court, and found her “extremely perceptive, smart, shrewd, and intellectually insightful.” She could be forceful, “at times unpleasantly so,” he recalls, and remembers being dressed down by her for a “substantial procedural mistake” he committed, but notes that such behavior by judges “is the opposite of uncommon.” Greenwald writes that behavior usually characterized as “tough,” “forceful,” and “authoritative” by white males is often reworked into characterizations of “domineering” and “egotistical” when the same behaviors are exhibited by women. Greenwald also notes that Rosen was one of the strongest media voices in favor of the nomination of conservative jurist John Roberts (see September 29, 2005) to the Court. [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).

Entity Tags: Glenn Greenwald, Sonia Sotomayor, Ta-Nehisi Coates, US Supreme Court, Marc Ambinder, Jeffrey Rosen

Timeline Tags: Domestic Propaganda

Tom Goldstein, a veteran lawyer who maintains the Supreme Court-focused, nonpartisan “SCOTUSblog,” writes that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) will be the focus of caricatures and character attacks from the right, just as Justices Samuel Alito (see October 31, 2005 - February 1, 2006) and John Roberts (see September 29, 2005) were from the left. Goldstein’s assessment is echoed by ABC’s “The Note,” an influential daily political newsletter. Goldstein, who has argued cases before the Court over 20 times, writes that barring some serious revelation of ethical violations, Sotomayor is almost guaranteed to be confirmed by the Senate, but before that, she will be subjected to attacks from what he calls “committed ideologues.” Few “mainstream Republican politicians will vocally join the criticism,” he predicts. In a political sense, it would be disastrous for Republicans to mount serious opposition to a Hispanic woman, or Latina. “To Hispanics, the nomination would be an absolutely historic landmark,” Goldstein writes. “It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.” Such attacks would comprise “a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren’t backed up with considerable substance.” The attacks will come from any of four major areas, Goldstein predicts. [Tom Goldstein, 5/26/2009]
Attacks Led by Conservatives outside Congress - ABC’s Jonathan Karl agrees. He writes: “At the start, Senate Republicans will likely make innocuous statements about the need to thoroughly review her record, but make no mistake, GOP leaders, with a big assist from outside conservative groups, will wage a vigorous campaign against this nomination.… Senate Republicans don’t expect to defeat the Sotomayor nomination. But they hope to raise enough questions about the nomination to make it a tough vote for Democratic senators in more conservative states. They will also use the confirmation battle as an opportunity to motivate a demoralized Republican base” (see May 1, 2009). [ABC News, 5/26/2009]
Attacks on Sotomayor's Intellect - The first series of attacks, Goldstein writes, will focus on the claim that she “is not smart enough for the job.” He writes that this is a powerful line of argument with an equally strong potential for backlash, so it will be handled carefully and obliquely. Unfortunately for this position, he writes, “Sotomayor is in fact extremely intelligent.” She graduated at the top of her class at Princeton, and her judicial opinions “are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and May 31, 2009).
'Liberal Ideologue and Judicial Activist' - The second line of attack will be purely ideological, focusing on the claim that she is a “liberal ideologue” and a “judicial activist.” While Sotomayor would be on the left of the Court, Goldstein writes, she is hardly a radical liberal. She is very similar to the man she is slated to replace, Justice David Souter, as a moderate, centrist liberal. Her appellate opinions as reviewed by the Court put her squarely with the left-center wing of the current Court. Karl writes, “They will call her an ‘activist’ judge intent on making law from the bench, not interpreting law.” Their predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, and June 3, 2009).
Intolerant of Positions Contrary to Her Own - The third wave of attack will claim, Goldstein writes, that she is intolerant of positions with which she disagrees. Proponents of this line of attack will focus on a decision she wrote that upheld affirmative action laws to the detriment of white firefighters, on a panel appearance in which she acknowledged that appellate judges sometimes make public policy, and a speech where she talked about the role her gender and ethnicity played in her decision-making. They will also focus, Karl notes, on a 2002 speech where she said the sex and ethnic origin of a judge can affect their decisions. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). “These reeds are too thin for that characterization to take hold,” Goldstein writes. The public “is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and June 3, 2009). [ABC News, 5/26/2009; Tom Goldstein, 5/26/2009]
Personality Characteristics - The fourth wave of attacks will characterize her as, Goldstein writes, “gruff and impersonable,” based on some excerpts from oral arguments and a few anonymous criticisms voiced in the “Almanac of the Federal Judiciary.” Sotomayor can easily quash these attacks with a few well-turned statements in the public eye. From his own experiences arguing cases before the Court, Goldstein believes Sotomayor is similar in demeanor and temperment to Justices Roberts, Souter, and Antonin Scalia. Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 27, 2009. May 29, 2009, and June 3, 2009).
Missed Line of Attack - Neither Goldstein nor Karl write about the direct attacks on Sotomayor’s race and gender that some conservatives will launch (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009). Goldstein’s own analysis of Sotomayor’s rulings will thoroughly disprove the allegations of racial bias (see May 29, 2009).
Conclusion - Goldstein concludes, “All in all… her easy confirmation seems assured.” [Tom Goldstein, 5/26/2009]

Entity Tags: David Souter, Sonia Sotomayor, Jonathan Karl, US Supreme Court, Thomas Goldstein, ABC News

Timeline Tags: Domestic Propaganda

Former House Speaker Newt Gingrich (R-GA) says that because Supreme Court nominee Sonia Sotomayor (see May 26, 2009) is what he calls a “Latina woman racist,” she should immediately withdraw her nomination. Gingrich bases his remark on a 2001 comment by Sotomayor in which she said she “hopes that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). Sending a text message on Twitter, Gingrich writes: “Imagine a judicial nominee said, ‘My experience as a white man makes me better than a Latina woman.’ New racism is no better than old racism.” He follows with another message: “White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw.” Republican National Committee (RNC) media chairman Todd Herman quickly “retweets” Gingrich’s message, which usually signifies agreement with the message, but the RNC will refuse to say whether or not it officially endorses Gingrich’s comment. White House press secretary Robert Gibbs replies that Gingrich is probably not the best source of information or guidance on the issue, and warns against excessive rhetoric: “I think it is probably important for any involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of the impending confirmation. I think we’re satisfied that when the people of America and the people of the Senate get a chance to look at more than just the blog of a former lawmaker that they’ll come to the same conclusion that the president did.” [Think Progress, 5/27/2009; Plum Line, 5/27/2009; Washington Times, 5/28/2009] Orrin Hatch (R-UT), who sits on the Senate Judiciary Committee, refuses to align himself with Gingrich’s characterization. Asked about Gingrich’s remark, Hatch says, “No, I don’t agree with that.” [Think Progress, 5/27/2009] Days later, Gingrich will appear to withdraw the “racist” characterization, although he will go on to accuse Sotomayor of “betray[ing]” the “American system” of law (see June 3, 2009).

Entity Tags: Newt Gingrich, Sonia Sotomayor, US Supreme Court, Orrin Hatch, Todd Herman, Robert Gibbs

Timeline Tags: Domestic Propaganda

Pat Buchanan on MSNBC.Pat Buchanan on MSNBC. [Source: Vosizneias (.com)]Conservative pundit Pat Buchanan calls Supreme Court nominee Sonia Sotomayor (see May 26, 2009) an “affirmative action candidate” for the Court. “I don’t say it’s an outrage, I say it’s affirmative action,” Buchanan says. “They were picked because she’s a woman and a Hispanic and you know it as well as I do.” His sole evidence for his claim is the fact that President Obama apparently had no males on his short list of potential nominees. When host Norah O’Donnell points out that in past nominations the list of nominees had been exclusively white males, and perhaps “there weren’t any white men who were qualified” this time around, Buchanan calls her a bigot. When guest Lawrence O’Donnell, a former Democratic Senate staffer (and no relation to the host), asks if he would have raised similar objections if the list had contained no women, Buchanan refuses to answer. Think Progress correspondent Amanda Terkel notes that Buchanan has, in the past, avowed that slavery was good for African-Americans, wished for an America that was 90 percent white, and accused Hispanics of not wanting to “assimilate.” Lawrence O’Donnell says of Buchanan’s argument: “It’s like watching a dead fish flop around on the deck. You’re dead on this one, Pat. It’s all over.” [Think Progress, 5/27/2009] The next day, Weekly Standard editor Fred Barnes follows Buchanan’s lead, saying that Sotomayor is “one of those who has benefited from affirmative action over the years tremendously.” Radio host William Bennett, featuring Barnes as his guest, replies, “Did she get into Princeton on affirmative action, one wonders,” to which Barnes repeats, “One wonders.” [Think Progress, 5/28/2009]

Entity Tags: Patrick Buchanan, Fred Barnes, Amanda Terkel, Lawrence O’Donnell, Sonia Sotomayor, Norah O’Donnell, US Supreme Court, William J. Bennett

Timeline Tags: Domestic Propaganda

The conservative Judicial Confirmation Network releases a television and Internet advertisement that attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for being “personally biased” in her rulings. The ad, which claims Sotomayor’s ascension to the high court will place “equal justice… under attack,” is based largely on comments Sotomayor made in a 2001 speech (see October 26, 2001). [Think Progress, 5/29/2009] White House spokesman Robert Gibbs says that Sotomayor made a “poor word choice” in her 2001 comments (see May 29, 2009) [Associated Press, 5/29/2009] , but both President Obama and liberal news and analysis Web site Think Progress note that in that same 2001 speech, Sotomayor was firm in reiterating her belief that judges must base their decisions on the rule of law, not on personal bias or preference. And an analysis of her record shows that she has ruled against plaintiffs in discrimination lawsuits a large majority of the time (see May 29, 2009). [Think Progress, 5/29/2009] After the ad draws fire from across the political spectrum, Judicial Confirmation Network spokeswoman Wendy Long (see May 26, 2009) backs away from the controversy, writing that the debate over Sotomayor “is turning into an argument about race and identity politics.” She adds, “Many of us in the conservative movement believe that Judge Sotomayor is intelligent, and that, at least on paper, she has professional qualifications that are certainly sufficient for occupying a seat on the US Supreme Court.” Long continues to call Sotomayor’s judicial philosophy “very troubling.” [MSNBC, 5/29/2009]

Entity Tags: US Supreme Court, Sonia Sotomayor, Robert Gibbs, Think Progress (.org), Barack Obama, Judicial Confirmation Network, Wendy Long

Timeline Tags: Domestic Propaganda

Right-wing pundit Pat Buchanan continues to attack Supreme Court nominee Sonia Sotomayor (see May 26, 2009), this time during an appearance on C-SPAN’s Washington Journal. Buchanan continues his allegations that Sotomayor is an “affirmative action nominee” (see May 28, 2009), and mocks her recent discussion of her difficulties with the English language: Sotomayor told a New York Times reporter that during her first years in college, she honed her English skills by reading children’s books, practiced with lower-level grammar books, and worked with a professor who provided her tutoring in the language. Buchanan says in reference to the article: “Well I, again in that Saturday piece, she went to Princeton. She graduated first in her class it said. But she herself said she read, basically classic children’s books to read and learn the language and she read basic English grammars and she got help from tutors. I think that, I mean if you’re, frankly if you’re in college and you’re working on Pinocchio or on the troll under the bridge, I don’t think that’s college work.” The article did not characterize her outside, self-directed remedial work with English as “college work.” Amanda Terkel, a reporter for left-leaning Think Progress, will note: “Buchanan has long claimed that Hispanic immigrants are resistant to learning English and has said that it would be easier for them to ‘assimilate’ if they did so.… So basically, Buchanan yells when Hispanics are allegedly unwilling to learn English. However, when they make an attempt to do so, he mocks them as being dumb.” [New York Times, 5/30/2009; Think Progress, 6/1/2009]

Entity Tags: US Supreme Court, Sonia Sotomayor, Amanda Terkel, Patrick Buchanan

Timeline Tags: Domestic Propaganda

Former George H. W. Bush speechwriter Peggy Noonan joins the ranks of Republicans (see May 28-31, 2009, May 29, 2009, and May 29, 2009) asking for a more moderate and less inflammatory tone in recent criticisms of Supreme Court nominee Sonia Sotomayor (see May 26, 2009 and May 26, 2009). Republicans should “play grown-up,” she advises, in opposing the Sotomayor nomination, and notes that her background—disadvantaged, Hispanic, female—makes her dangerous to oppose too vehemently: “Politically she’s like a beautiful doll containing a canister of poison gas: Break her and you die.” Noonan continues: “New York is proud of her; I’m proud of our country and grateful at its insistence, in a time when some say the American dream is dead, that it most certainly is not. The dream is: You can come from any place or condition, any walk of life, and rise to the top, taking your people with you, in your heart and theirs. Maybe that’s what they mean by empathy: Where you come from enters you, and you bring it with you as you rise. But if that’s what they mean, then we’re all empathetic. We’re the most fluid society in human history, but no one ever leaves their zip code in America, we all take it with us. It’s part of our pride. And it’s not bad, it’s good.” Noonan calls Republicans who launch virulent attacks on her racial heritage or gender “idiots,” and writes that instead of “exciting the base,” as one Republican strategist has said the attacks will do, “How about excit[ing] a moderate, or interest[ing] an independent? How about gain[ing] the attention of people who aren’t already on your side? The base is plenty excited already, as you know if you’ve ever read a comment thread on a conservative blog.… They don’t need to be revved, they’re already revved. Newt Gingrich twitters that Judge Sotomayor is a racist (see May 27, 2009). Does anyone believe that? He should rest his dancing thumbs, stop trying to position himself as the choice and voice of the base in 2012, and think.… The choice for Republicans isn’t between ‘attack’ and ‘roll over.’ It’s broader than that, and more interesting. There’s a new and fresh opportunity here for Republicans in the Senate to be serious, and, in their seriousness, to be seen and understood in a new light.” [Wall Street Journal, 6/1/2009]

Entity Tags: US Supreme Court, Newt Gingrich, Sonia Sotomayor, Peggy Noonan

Timeline Tags: Domestic Propaganda

A doctored photo of Sotomayor issued by the Council of Conservative Citizens. The robe and hood have been added to the photo, as has the ‘raised-fist’ logo.A doctored photo of Sotomayor issued by the Council of Conservative Citizens. The robe and hood have been added to the photo, as has the ‘raised-fist’ logo. [Source: Council of Conservative Citizens / Think Progress]The Council of Conservative Citizens (CofCC), a pro-segregation group that the Southern Poverty Law Center has called “brazenly racist,” posts a doctored photograph of Supreme Court nominee Sonia Sotomayor (see May 26, 2009) on its Web site. The altered photograph depicts Sotomayor wearing what appears to be a robe and hood similar to those worn by members of the Ku Klux Klan. The robe has a raised fist and the words “La Raza.” Sotomayor is a member of the National Council of La Raza (NCLR), a Hispanic civil rights organization which some conservatives have falsely claimed is a racist organization (see May 28, 2009 and May 29, 2009). An NCLR spokesman confirms that the logo in the photograph is not used on any basis by the organization. [Think Progress, 6/2/2009]

Entity Tags: National Council of La Raza, Council of Conservative Citizens, US Supreme Court, Sonia Sotomayor, Southern Poverty Law Center

Timeline Tags: Domestic Propaganda

After meeting with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Lindsey Graham (R-SC) says he has fundamental questions about her judicial philosophy and temperament, and adds he will likely not vote to confirm her to the high court. “I was very direct,” he tells reporters of his conversation with Sotomayor. “I have to decide how to play this game, quite frankly. If I use the same standard that Senator [Barack] Obama used, then I would not vote for you, quite frankly.” Graham is referring to votes cast by then-Senator Obama against Justices John Roberts (see September 29, 2005) and Samuel Alito (see October 31, 2005 - February 1, 2006) in which Graham asserts that Obama voted against them on ideological grounds. “He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee,” Graham says. Many political observers feel that Graham is something of a bellwether of Republican sentiment; a former judge advocate general officer, Graham is considered one of the better legal minds in the party, and his opinion carries great weight with his colleagues. Other Republicans may follow his lead in coming out in public opposition to the nominee. Graham says he asked Sotomayor about her “wise Latina” comment (see October 26, 2001), but refuses to say how she responded. Graham also says he has questions about her temperament, saying that while she was friendly in the meeting, he cannot ignore other lawyers’ negative assessments of her personality (see May 4, 2009). “I think she does have the intellectual capacity to do the job,” Graham says. “But there’s a character problem. There’s a temperament problem that they—during the time they’ve had to be a judge, that they were more of an advocate than an impartial decider of the law. And I’ve got to find out, in my own mind” about her temperament. [Politico, 6/3/2009] On Fox News, Graham contradicts his earlier assessment, saying that Sotomayor has “sterling character.” [Think Progress, 6/3/2009]

Entity Tags: US Supreme Court, Lindsey Graham, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Republican National Committee chairman Michael Steele implies that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) has racist tendencies, a week after urging fellow Republicans to stop “slammin’ and rammin’” Sotomayor over the issue of race and deal with her nomination on the issues (see May 29, 2009). While guest-hosting William Bennett’s radio show, Steele discusses criticisms that have been made of Sotomayor. “[T]he comments that she made that have been played up about, you know, the Latina woman being a better judge than the white male is something that she has said on numerous occasions,” Steele tells a caller (see October 26, 2001). “So this was not just the one and only time it was said. They’ve now found other evidences and other speeches… that she has made mention of this, this fact that her ethnicity, that her cultural background puts her in a different position as a judge to judge your case.… And God help you if you’re a white male coming before her bench.” A recent analysis of Sotomayor’s decisions as a judge in race-based cases proves that she does not discriminate against white plaintiffs (see May 29, 2009). [Think Progress, 6/5/2009] Four days later, Steele will defend his remarks. “Well, that’s not inflammatory,” he tells a CNN audience. “It’s based off of what—the inference that she left and what she said. You know, if you have a judge, where you have a situation where you have—you’re going before a trier of fact, and the trier of fact is on record as saying that this individual’s background experience is better positioned to make a decision than someone else, that gives one pause. And so my view of it was, in looking at it, you’re now segregating out white men by your comments. So, God help you if you’re a white male. If you’re seeking justice, this may not be the bench you want to go before.” [Think Progress, 6/10/2009]

Entity Tags: Republican National Committee, US Supreme Court, Sonia Sotomayor, Michael Steele

Timeline Tags: Domestic Propaganda

Former House Speaker Newt Gingrich, who recently seemed to retract his characterization of Supreme Court nominee Sonia Sotomayor as a “racist” (see May 27, 2009 and June 3, 2009), now calls Sotomayor a “racialist.” On CBS News’s Face the Nation, Gingrich says: “When I did a Twitter about her, having read what she said, I said that was racist—but I applied it to her as a person. And the truth is I don’t know her as a person. It’s clear that what she said was racist, and it’s clear—or as somebody wrote recently, ‘racialist’ if you prefer.” [Think Progress, 6/7/2009]

Entity Tags: US Supreme Court, Newt Gingrich, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Former First Lady Laura Bush says some positive things about Supreme Court nominee Sonia Sotomayor (see May 26, 2009). On ABC’s Good Morning America, Bush says: “I think she sounds like a very interesting and good nominee.… As a woman, I’m proud there might be another woman on the Court. So we’ll see what happens, but I wish her well.” [Think Progress, 6/8/2009] Bush’s comments stand in contrast to some conservatives’ gender-based attacks on Sotomayor (see May 26, 2009, May 28, 2009, and June 5, 2009).

Entity Tags: US Supreme Court, Sonia Sotomayor, Laura Bush

Timeline Tags: Domestic Propaganda

After meeting one-on-one with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Mel Martinez (R-FL) predicts that she will be confirmed “with pretty good numbers” and will “fit in” well on the Court. Martinez, like Sotomayor a Hispanic, says he is not concerned about her “wise Latina” comments from 2001 (see October 26, 2001). He knows of no evidence that shows she has ever let her heritage or personal feelings influence her judicial decisions (see May 29, 2009). “For someone who is of Latin background, personally, I understand what she is trying to say,” Martinez comments. “Which is, the richness of her experience forms who she is. It forms who I am.” [CNN, 6/9/2009]

Entity Tags: US Supreme Court, Mel Martinez, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Former President George H. W. Bush condemns the right-wing attacks against Supreme Court nominee Sonia Sotomayor (see May 26, 2009), speaking out specifically against the charges that she has racist tendencies (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 26, 2009, May 27-29, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 2, 2009, June 5, 2009, and June 7, 2009). “I don’t know her that well but I think she’s had a distinguished record on the bench and she should be entitled to fair hearings,” he says. “Not—[it’s] like the senator John Cornyn said it (see May 28-31, 2009). He may vote for it, he may not. But he’s been backing away from these… backing off from those radical statements to describe her, to attribute things to her that may or may not be true.… And she was called by somebody a racist once. That’s not right. I mean that’s not fair. It doesn’t help the process. You’re out there name-calling. So let them decide who they want to vote for and get on with it.” [Think Progress, 6/12/2009]

Entity Tags: US Supreme Court, John Cornyn, Sonia Sotomayor, George Herbert Walker Bush

Timeline Tags: Domestic Propaganda

English-only advocates Pat Buchanan and white nationalist Peter Brimelow standing under misspelled banner.English-only advocates Pat Buchanan and white nationalist Peter Brimelow standing under misspelled banner. [Source: Think Progress (.org)]Right-wing pundit Pat Buchanan and his organization The American Cause host a conference to discuss how Republicans can regain a political majority. The conference is co-sponsored by a number of white nationalist and white advocacy groups. The conference features a panel discussion supporting English-only initiatives as a way to attract “working-class white Democrats” to the Republican Party, and in the process ridicules Supreme Court nominee Sonia Sotomayor (see May 26, 2009) for her use of children’s books to study English while she was in college (see May 31, 2009). The panelists also suggest that, without English as the official language of the US, President Obama would force Americans to speak Spanish. The conference’s English-only advocates apparently do not notice that the banner hanging over the festivities prominently misspells the word “conference” as “conferenece.” [Media Matters, 6/11/2009; Think Progress, 6/22/2009]

Entity Tags: Republican Party, Patrick Buchanan, The American Cause, US Supreme Court, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Rachel Maddow and Pat Buchanan, during their discussion of Sonia Sotomayor’s nomination to the Supreme Court.Rachel Maddow and Pat Buchanan, during their discussion of Sonia Sotomayor’s nomination to the Supreme Court. [Source: MSNBC / Crooks and Liars]As the Senate readies to vote for or against Judge Sonia Sotomayor for the Supreme Court (see August 6, 2009), conservative commentator and author Pat Buchanan attempts to explain why he feels Sotomayor should not be confirmed.
Affirmative Action Accusation - Buchanan, interviewed by MSNBC’s progressive host Rachel Maddow, has accused Sotomayor of being an “affirmative action” selection for the bench (see May 28, 2009, May 31, 2009, June 12, 2009, and June 20, 2009) who uses her position to “discriminate against white males.” As evidence of his claim, he says: “I do believe she’s an affirmative action appointment by the president of the United States. He eliminated everyone but four women and then he picked the Hispanic.” Maddow asks him to define affirmative action, and Buchanan replies, “Affirmative action is to increase diversity by discriminating against white males.” After citing four court cases, he adds: “[A]ffirmative action is basically reverse discrimination against white males and it’s as wrong as discrimination against black females and Hispanics and others. And that’s why I oppose it.”
White People Built America, Buchanan Says - In her turn, Maddow asks, “Why do you think is that of the 110 Supreme Court justices we’ve had in this country, 108 of them have been white?” to which Buchanan responds: “Well, I think white men were 100 percent of the people that wrote the Constitution, 100 percent of the people that signed the Declaration of Independence, 100 percent of people who died at Gettysburg and Vicksburg. Probably close to 100 percent of the people who died at Normandy. This has been a country built basically by white folks in this country who are 90 percent of the entire nation—in 1960, when I was growing up, Rachel—and the other 10 percent were African-American who had been discriminated against. That’s why.” Maddow asks if he believes “there are 108 of 110 white Supreme Court justices because white people essentially deserve to have 99.5 percent of those positions? That there’s nothing—that doesn’t reflect any sort of barrier to those positions by people who aren’t white. You think that’s what they’ve—you think that’s just purely on the basis of what white people have deserved to get?”
Back to Affirmative Action - Buchanan shifts his argument and asserts that the Supreme Court should have the nine finest legal minds and scholars, regardless of race or gender. “But this one doesn’t have that. She was appointed because she’s a Latina, a Hispanic, and a woman.” Maddow counters with Sotomayor’s extensive experience, saying: “She is also the judicial nominee who has more judging experience than any judge has gone up in, say, in the past, I don’t know, what is it, 70 years? She has been an appellate court judge of some distinction for a lot longer than [Chief Justice John] Roberts was, [Justice Samuel] Alito was. I mean, it’s not like she was—she was picked out… she was like picked out of the minor leagues and brought up here, Pat.” Buchanan returns to his affirmative action argument, noting that Sotomayor agreed that she was granted admission to Princeton University because of the program. Buchanan goes farther, accusing her of receiving preferential treatment for all of her accomplishments, including her stint on the Yale Law Review and her appointment to the federal bench. Maddow, battling through Buchanan’s attempts to interrupt her, defends the affirmative action program, saying: “[W]hat our country needs is to be able to choose from the largest possible pool of talent in order to be able to pick the people who are going to have to function at the highest levels so that our country can compete and our country to do all the hard things we need do, I would hope that you would see that picking 108 out of 110 white justices… to the Supreme Court means that other people aren’t actually being appropriately considered. And the reason that you have affirmative action is that you recognize that the fact that people were discriminated against for hundreds of years in this country means that you sort of gained the system, unless you give other people a leg up.” She continues, “But, Pat, for you to argue that there’s no basis on which the United States benefits… from having Hispanics be among the people who we choose the best and brightest from defies belief.… The idea that you think we’ll best serve by only choosing among 99.9 percent white people.… [W]hen I look at the United States Supreme Court and I see 108 out of 110 white people, I see 108 out of 110 men. I’m—I don’t look at that and think, ‘God, white guys are naturally better at this type of work than other people who aren’t getting these jobs.’ I don’t think that way.… I want to hear you—I would love to hear your answer as to whether or not you think that is what explains it, too. Because, I think, what the more obvious explanation is, is that you have to be a white guy in order to get considered for these jobs and has been true since the dawn of time in this country.… That’s starting to break up now so that we can tap a bigger pool of talent. You should be happy about that for your country, Pat.” Buchanan counters that whites “are victims of this evil affirmative action policy which says in effect that everybody’s covered by the 14th Amendment and the civil rights laws unless you’re a white male and your parents and ancestors came from Europe. Then we can discriminate against you. That’s what I am against.”
Stirring 'Up Racial Animus' - Countering Buchanan’s accusations of reverse racism, Maddow says: “Pat, I couldn’t disagree with you more. I tribute—I credit you sticking to your gun. I think you’re absolutely wrong about this and I think that by advocating that the Republican Party try to stir up racial animus among white voters.… You’re dating yourself.” Buchanan says that the government should “defend the legitimate rights of white working-class folks who are the victims of discrimination, because that’s the right thing to do and because it’s the politically right thing to do.” Maddow concludes: “A lot of things divide us, Pat. Race is one of those. But there’s a lot of other ways in which we just gratify as a country, and for you to privilege race and say that what we really need to make sure we tap, politically, is white people’s racial grievances, you’re playing with fire and you’re dating yourself. You’re living in the 1950s, Pat.” [MSNBC, 7/17/2009]

Entity Tags: Samuel Alito, Patrick Buchanan, John G. Roberts, Jr, Rachel Maddow, Sonia Sotomayor, US Supreme Court

Timeline Tags: Domestic Propaganda

Melissa Harris-Lacewell.Melissa Harris-Lacewell. [Source: Melissa Harris-Lacewell]Melissa Harris-Lacewell, professor of politics and African-American studies at Princeton, attempts to explain the increasingly overt and virulent racism being promulgated by some conservative lawmakers, talk show hosts, and anti-health care protesters (see February 1, 2008, August 1, 2008 and After, August 4, 2008, August 19, 2008, November 18, 2008, February 24-26, 2009, April 7-8, 2009, July 24, 2009, July 25, 2009, and July 28, 2009). “[A]s a political scientist, you always want to start with the assumption that a political party, whatever choices it’s making are trying to seek office,” she says. She says one must assume that the racist rhetoric “is somehow a strategy of the right or strategy of an element of the GOP to somehow gain office either in the mid-term elections or more long term for the presidential race.” However, that is not the entirety of the reasons behind the rhetoric: “[T]he other part, I think, that I have maybe not been thinking about as carefully is that when we think about the history of race in America, sometimes we have to put aside the notion of strategy and just embrace the reality that race in this country has often brought out irrational anger, fear, anxiety, emotionalism. So it is possible that this is not actually a GOP or a conservative strategy but is instead really kind of an emotional tantrum on the part of some members of the conservative wing who really just are floundering as they look at a world that is changing so dramatically around questions of race.” MSNBC host Rachel Maddow expands on Harris-Lacewell’s point, saying: “I was with you on it being an irrational tantrum until I started to see the same very specific tactic used in very different venues about very different subjects, this idea of the person who is not white being the problem racist, being used against [Supreme Court nominee Sonia] Sotomayor (see May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, June 5, 2009, and June 12, 2009)… being used against the president now, inexplicably, unrelated to any policy issue but just as a free floating critique of the president. And it does make me wonder about this as an overt political strategy.” Harris-Lacewell replies: “President Obama paused in the middle of the primary race to speak in Philadelphia about the question of race in America. And he set up sort of two possibilities, black anger rooted in a history of African-American inequality and white resentment rooted in a sense of kind of a loss of racial privilege. Now, I think in many ways it’s a very accurate assessment of sort of the ways that blacks and whites, not completely and not perfectly, but often perceive things quite differently. So I spent the month in New Orleans and Hurricane Katrina is a perfect example of this. Everybody in the country was mad but African-Americans saw the failures of the federal government around Katrina as a race issue. White Americans who were still angry about the failures of the government saw it primarily as a bureaucratic issue rather than a race issue. So here, you have these two groups with very different perspectives. Now, that made all the difference in being able to make policy. So I think that they’re hoping that these differences in how blacks and whites often see the world can be a perfect kind of wedge to use on health care, to use on education, to use on a wide variety of issues that, in fact, really—if we don’t fix health care, it is bad for all Americans. But if we can somehow kind of suggest that the president is just trying to do things that are good for black people and bad for white people, then it opens up that kind of possibility of anxiety, distrust, and different perceptions.” [MSNBC, 7/30/2009]

Entity Tags: Rachel Maddow, Melissa Harris-Perry

Timeline Tags: Domestic Propaganda, 2010 Elections

Max Pappas, a senior official with the conservative lobbying firm FreedomWorks (see April 14, 2009), openly takes credit for his firm ratcheting up disruptive behavior at “town halls” across the nation devoted to discussion of health care reform (see June 30, 2009, July 6, 2009, July 25, 2009, July 27, 2009, July 27, 2009, July 31, 2009, August 1, 2009, August 1, 2009, August 2, 2009, August 3, 2009, August 3, 2009, August 3, 2009, August 3, 2009, August 4, 2009, August 4, 2009, August 5, 2009, August 5, 2009, August 6, 2009, August 6, 2009, and August 6-8, 2009). Pappas is interviewed by MSNBC’s Chris Matthews, who says that FreedomWorks is “blowing them [town hall meetings] apart.” Pappas agrees, saying, “Yes, just like we blew up—” before Matthews talks over his response. Pappas says that FreedomWorks only has about 18 paid employees, and does most of its work over the Internet, working with 400,000 online members (referring to the number of people on its e-mail lists). “We… send them information about when the town halls are, give them briefings on the health care reform plans.” The Washington Post’s Greg Sargent writes: “[T]here’s nothing wrong with FreedomWorks or any other group doing this. But if industry-funded groups are pumping up turnout at town hall meetings, it makes it perfectly fair game for reform proponents to argue that the industry is trying to manipulate perceptions of public opinion for the sake of its bottom line.” [Plum Line, 8/7/2009] The next day, Pappas appears on C-SPAN, and a caller claiming to be a Republican veteran asks him “to tell these people to wrap it down.” The caller says: “We Republicans already have the image of being owned by corporate America. Now we’re getting the image of being owned by wild red neck America.” Pappas responds: “We don’t have the power to control how many people turn out or how they behave there. All we really do is facilitate their participation by letting people know when these town halls are and giving them information about the issues that are going to be discussed. The passions are so deep about this issue that we can’t send out an email that says ‘calm down.’” Another caller claims to be from the Council of Conservative Citizens (CCC), a white power and outspokenly racist organization (see June 2, 2009), and praises Pappas and FreedomWorks, calling him “a true patriot.” Pappas asks the caller to join the organization. [Think Progress, 8/7/2009]

Entity Tags: Max Pappas, Chris Matthews, Council of Conservative Citizens, FreedomWorks, Greg Sargent

Timeline Tags: US Health Care, Domestic Propaganda, 2010 Elections

Republican Senator Lindsey Graham (R-SC) finds himself under fire from conservative “tea party” protesters after voting for Supreme Court nominee Sonia Sotomayor (see June 3, 2009) and promising to work with Democrats on crafting clean energy legislation. Graham holds a “town hall” meeting at Furman University in Greenville, South Carolina, and faces protesters who accuse him of being a “RINO,” or “Republican in Name Only.” Activist Harry Kimball shows a display that depicts Graham and fellow Republican moderates Olympia Snowe (R-ME) and Susan Collins (R-ME) as being flushed down a toilet. Kimball tells a reporter, “This is for every RINO who has failed to represent us.” One protester draws loud applause when he asks Graham, “When are you going to announce that you are switching parties?” Graham defends his positions and denounces the influence of Representative Ron Paul (R-TX) on the Republican Party, saying: “I’m going to grow this party.… I’m not going to let it be hijacked by Ron Paul.… I’m going to find people in Maine, Delaware, Illinois, other places—” to which audience members shout, “Move there!” Graham continues, “… [t]hat can win as Republicans, and I’m going to go up, and we’re going to move this party, and this country forward, and if you don’t like it, you can leave.” Several audience members walk out of the auditorium when Graham makes his last statement. During his presentation, angry protesters interrupt him with shouts of “You’re a country club Republican!” “Sotomayor!” and “You lie!” Outside the event, one protester displays a sign decrying “Unconstitutional Anti-Christ Socialist Federal Deficit Spending Programs,” and accuses Graham of being part of the government problem. “We’re not going to be the party of angry white guys,” Graham tells the crowd. [Think Progress, 10/13/2009; The State, 10/13/2009]

Entity Tags: Olympia Snowe, Harry Kimball, Lindsey Graham, Sonia Sotomayor, Susan Collins, Ron Paul

Timeline Tags: Domestic Propaganda

Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy.Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]

Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times

Timeline Tags: Civil Liberties

James Bopp Jr.James Bopp Jr. [Source: Associated Press / Politico]A former lawyer for Citizens United (CU), James Bopp Jr., confirms that the organization had a “10-year plan” that culminated in the recent Citizens United ruling that overturned most of US campaign finance law (see January 21, 2010). Bopp has been battling government restrictions on abortion (see November 1980 and After) and campaign finance (see Mid-2004 and After, January 10-16, 2008, and March 24, 2008) for much of his 35-year career. He calls his opponents, including President Obama, “socialists,” and justifies his views by citing the First Amendment. Bopp did not argue the case before the Supreme Court; Citizens United replaced him with what the New York Times calls “a less ideological and more experienced Washington lawyer” (see March 15, 2009). But Bopp is the lawyer who advised CU to use its documentary about presidential candidate Hillary Clinton (D-NY—see January 10-16, 2008) as a test case to push the limits of corporate spending. He says his strategy continues, with the ultimate goal of deregulating campaign finance completely. “We had a 10-year plan to take all this down,” Bopp says. “And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.… We have been awfully successful, and we are not done yet.” Law professor and campaign finance law expert Richard Hasen says the CU case “was really Jim’s brainchild.” Hasen explains: “He has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result. He is a litigation machine.” Bopp has other cases on appeal with various courts, all designed to do what the Times says “chip away at some of the disclosure laws left intact by the Supreme Court’s ruling in the Citizens United case.” One of Bopp’s main goals is to end the ban on direct donations by corporations to candidates, a goal law professor Nathaniel Persily says is logical in light of Bopp’s earlier efforts: “If you cannot ban corporate spending on ads, how is it that you are allowed to ban corporate contributions to candidates? That is the next shoe to drop.” He also wants to end all disclosure requirements, explaining, “Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.” Forcing groups who buy political commercials to disclose their donors is nearly as punitive, he says, “as an outright criminal go-to-jail-time prohibition.” Bopp says he harbors no ill will towards CU from replacing him with another lawyer to argue the case before the Court. “I understand that law is art,” he says. “Picasso, Van Gogh, Michelangelo—they are all very different, but all create masterpieces.” [New York Times, 1/25/2010]

Entity Tags: Nathaniel Persily, Barack Obama, Citizens United, New York Times, Hillary Clinton, US Supreme Court, James Bopp, Jr, Richard L. Hasen

Timeline Tags: Civil Liberties

Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address.Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address. [Source: Renovo Media]President Obama sharply criticizes the recent Citizens United decision by the Supreme Court, giving corporations and unions the right to give unlimited and anonymous donations to organizations supporting or opposing political candidates (see January 21, 2010), during the annual State of the Union address. Obama gives the address to a joint session of Congress, with three Supreme Court members in attendance. “With all due deference to the separation of powers,” Obama says, “last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” Democrats in the chamber applaud Obama’s remarks, while Republicans do not. In his response, Justice Samuel Alito, one of the five conservatives on the Court who joined in the majority decision, shakes his head and mouths, “Not true, not true” (some lip readers will later claim that Alito says, “That’s not true”). It is highly unusual for a president to so directly criticize a Supreme Court ruling, especially in a State of the Union address. The next day, Vice President Joe Biden defends Obama’s remarks in an appearance on Good Morning America. Biden says: “The president didn’t question the integrity of the court. He questioned the judgment of it. I think [the ruling] was dead wrong and we have to correct it.” Supreme Court expert Lucas A. Powe says, “I can’t ever recall a president taking a swipe at the Supreme Court like that.” Experts say that the closest precedent they can find is President Franklin Roosevelt’s 1937 criticism of the Court in his address to Congress. Yale law professor Jack Balkin says, “The important thing to me is that the president thinks the Citizens United decision is important enough that he would include it.” Reactions are split along ideological lines. Senator Orrin Hatch (R-UT) calls Obama “rude” to criticize the Court’s verdict. Senator Russ Feingold (D-WI) calls Alito’s reaction “inappropriate.” Legal expert Barbara A. Perry of Sweet Briar College says both Obama and Alito were in the wrong, calling the interaction “an unfortunate display for both branches.” White House deputy press secretary Bill Burton says: “One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private. This is one of those cases.” Alito refuses to comment. Alito and Obama have a contentious history. As a senator, Obama was one of the most outspoken voices against Alito’s confirmation as a Supreme Court justice (see October 31, 2005 - February 1, 2006), saying then of Alito, “[W]hen you look at his record—when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.” For his part, Alito snubbed the formal visit paid by Obama and Biden to the Court. [New York Daily News, 1/28/2010; Washington Post, 1/28/2010] Months later, Obama’s warning will be proven to be correct, as a media investigation will show the US Chamber of Commerce using foreign monies to fund attack ads and other political activities under the cloak of the Citizens United decision (see October 2010).

Entity Tags: Jack Balkin, Barbara A. Perry, Barack Obama, Franklin Delano Roosevelt, US Congress, US Supreme Court, Samuel Alito, Orrin Hatch, Lucas A. (“Scot”) Powe, Joseph Biden, US Chamber of Commerce, Russell D. Feingold, Bill Burton

Timeline Tags: Civil Liberties

In an unsigned editorial, the Wall Street Journal lambasts President Obama for his recent comments that warned the Citizens United decision (see January 21, 2010) could open the door for foreign corporations to contribute money for use in American elections (see January 27-29, 2010). “[C]ould a graduate of Harvard Law School at least get his facts right?” the editorial asks. The Journal accuses Obama of reciting a number of falsehoods in his comments on the decision, and accuses him of using the term “foreign” in “a conscious attempt to inflame public and Congressional opinion against the Court. Coming from a president who fancies himself a citizen of the world, and who has gone so far as [to] foreswear American exceptionalism, this leap into talk-show nativism is certainly illuminating. What will they think of that one in the cafes of Berlin?” [Wall Street Journal, 1/29/2010] The day before the editorial, the liberal media watchdog organization Media Matters noted that Obama’s concerns were echoed by the four dissenting Supreme Court Justices in the decision, as well as by a number of legal experts (see January 27-28, 2010).

Entity Tags: Wall Street Journal, Media Matters, Barack Obama

Timeline Tags: Civil Liberties

In a highly unusual action for a sitting Supreme Court Justice, Justice Clarence Thomas strongly defends the Court’s recent Citizens United ruling that allows unlimited corporate and union funding of campaign activities (see January 21, 2010). He makes his remarks at the Stetson University College of Law in Gulfport, Florida. Thomas was part of the 5-4 majority that ruled on the case. He also says that he refused to attend the recent State of the Union address by President Obama, where fellow Justice Samuel Alito apparently contradicted Obama’s critical characterization of the ruling (see January 27-29, 2010), because under Obama, these addresses have become “partisan,” stating: “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there… there’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments (see September 9, 2009). One of the consequences is now the Court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.” Thomas mocks media criticisms of the ruling, saying: “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. These are corporations.” It is a mistake, Thomas says, to consider regulation of corporations’ campaign activities as “some sort of beatific action,” and he cites the 1907 Tillman Act, the first federal legislation banning corporate contributions to federal candidates (see 1907), as being sparked by racism, saying: “Go back and read why [Senator Benjamin] Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” Thomas says the underpinning of the decision was the First Amendment’s protection of speech regardless of how people choose to assemble to participate in the political process. “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he says. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association. But what if you put yourself in a corporate form?” The answer would be the same, Thomas says. [New York Times, 2/3/2010]

Entity Tags: New York Times, Barack Obama, Clarence Thomas, Tillman Act, US Supreme Court, Washington Post, Samuel Alito

Timeline Tags: Civil Liberties

Legatus logo.Legatus logo. [Source: ProLife Dallas (.org)]Former President George W. Bush is honored by Legatus, a Florida-based Catholic group for business and civic leaders, for his opposition to reproductive rights during his presidency. Bush receives the “Cardinal John J. O’Connor Pro-Life Award,” named for the famously anti-abortion Catholic leader. The organization notes Bush’s opposition to stem-cell research, his executive order banning the use of federal funds for abortions (see November 5, 2003), his appointment of anti-abortion advocates to the Supreme Court (see October 31, 2005 - February 1, 2006 and September 29, 2005), and his designation of January 18, 2009 as “National Sanctity of Human Life Day.” The award is given at a private meeting in Dana Point, California. The event is only open to members of Legatus and their guests, and the registration fee is $1,475 per person. A Legatus official tells a reporter: “His appearance is going to be a private appearance on behalf of our organization. He will be delivering remarks for us and all of that will be a private presentation.” Event chairperson Kathleen Eaton says: “I’ve been speaking to a number of Legatus chapters about the summit, and people are really excited. It’s been a rough year on a number of fronts and they really need this shot in the arm. They want to come together to pray and learn more about what the church is saying on different issues.” Local pro-choice and peace groups mount a protest; one organizer, Sharon Tipton, tells a reporter: “Over one million Iraqi people have been killed, mostly women and children. Bush is responsible for over 5 million new orphans, and we just found out that Bush is receiving a pro-life award? This is outrageous!” [Catholic News Agency, 1/8/2010; Orange County Weekly, 2/3/2010]

Entity Tags: Sharon Tipton, Legatus, George W. Bush, Kathleen Eaton

Timeline Tags: US Health Care

Florida State Representative Charles Van Sant (R-FL) submits what he calls the “Florida for Life Act,” which will make all abortions illegal in Florida. The law directly challenges the Supreme Court’s 1973 ruling that abortions are legal in the US (see January 22, 1973), and makes no exceptions for incest or rape (abortions would be legal only if the life of the mother were at risk). If passed, the act would punish abortion providers, not the expectant mothers, with a first-degree felony and a penalty of up to life in prison. [House of Representatives, 2/17/2010; Women's Choice, 2/23/2010] The bill states that “The Legislature of the people of the State of Florida finds that all life comes from the Creator and begins at conception.” According to the Sarasota Herald-Tribune, the bill “openly challenges the legitimacy of the US Supreme Court” by saying: “The Legislature finds that the justices of the United States Supreme Court are not qualified to determine, establish, or define the moral values of the people of the United States and specifically for the people of Florida. The Supreme Court’s removal of moral and political questions from the political power of the people to determine, under color of constitutional adjudication, is a violation of the peoples’ right to self-government guaranteed under the Constitution of the United States.” [Sarasota Herald-Tribune, 10/15/2010; Sarasota Herald-Tribune, 2/7/2011] In February 2011, a Sarasota Herald-Tribune editorial will call the bill “extreme to the extreme” and not “worth the time lawmakers may waste on it,” claiming that if passed, the law “would flout US law and thwart the state constitution’s privacy clause.” [Sarasota Herald-Tribune, 2/7/2011] Some Florida Republicans will refuse to publicly endorse the bill, saying it goes too far. As of March 2011, the bill is not predicted to gain passage. [Florida Independent, 12/2/2010; St. Petersburg Times, 3/22/2011]

Entity Tags: US Supreme Court, Charles Van Sant, Florida for Life Act, Sarasota Herald-Tribune

Timeline Tags: US Health Care, Civil Liberties

Private Lee Pray, a member of the Oath Keepers. His finger tattoo spells out ‘THOR.’Private Lee Pray, a member of the Oath Keepers. His finger tattoo spells out ‘THOR.’ [Source: Mother Jones]The progressive news magazine Mother Jones publishes a detailed examination of the Oath Keepers (see March 9, 2009), one of the fastest-growing “patriot” groups on the far right. The group was founded in April 2009 by Stewart Rhodes, a lawyer who once served as an aide to libertarian US Representative Ron Paul (R-TX). According to author Justine Sharrock, it has become “a hub in the sprawling anti-Obama movement that includes Tea Partiers, Birthers, and 912ers.” (Sharrock is referring to the burgeoning “tea party” movement, the people who believe President Obama is not an American citizen (see August 1, 2008 and After and October 8-10, 2008), and the “9/12” organization formed by lobbying organization FreedomWorks and Fox News host Glenn Beck—see March 13, 2009 and After.) Beck, MSNBC commentator Pat Buchanan (see May 28, 2009, June 20, 2009, and July 16, 2009), and CNN host Lou Dobbs have publicly praised the organization. In December 2009, a grassroots summit organized by the Oath Keepers drew lawmakers such as US Representatives Phil Gingrey (R-GA) and Paul Broun (R-GA). Sharrock’s profile is based on research and interviews with Rhodes, other Oath Keeper leaders, and ordinary members such as Private Lee Pray, who is stationed at Fort Drum, New York.
Group Made Up of Uniformed Citizens - What sets the group apart from others on the far-right fringe is that its membership is restricted to US citizens in uniform—soldiers, police officers, and veterans. At its ceremonies, members reaffirm their official oaths of service, pledging to protect the Constitution, but then go a step further, vowing to disobey “unconstitutional” orders from what they view as an increasingly tyrannical government. Pray says he knows of five fellow Oath Keepers at Fort Drum.
Preparing for Tyranny, Martial Law - He and other members are actively recruiting, arguing that under Obama, the US government is turning increasingly tyrannical and must be opposed, violently if need be. Pray says that many Oath Keepers had problems with some government policies under President Bush, but those reservations have grown with Obama’s ascension to power. Rhodes tells Sharrock: “Too many conservatives relied on Bush’s character and didn’t pay attention. Only now, with Obama, do they worry and see what has been done. Maybe you said, ‘I trusted Bush to only go after the terrorists.’ But what do you think can happen down the road when they say, ‘I think you are a threat to the nation?’” Pray, like many members, believes it will be a year at most before Obama declares martial law, perhaps under the pretext of a natural disaster or another 9/11-level terror attack, and begin detaining citizens en masse and banning interstate travel. Another Oath Keeper advises Sharrock to prepare a “bug out” bag with 39 items including gas masks, ammunition, and water purification tablets, so that she will be prepared “when the sh_t hits the fan.” Pray and his friends have a “fortified bunker” at one of their member’s parents’ home in rural Idaho, where they have stashed survival gear, generators, food, and plenty of weapons. If need be, they say, they will attack their fellow soldiers. Pray describes himself as both a “birther” and a “truther,” believing that Obama is an illegitimate president installed by a government that launched the 9/11 attacks on its own soil to drive the country further down the road towards tyranny. Pray has suffered demotion for a drinking problem, and was denied deployment to Iraq when he injured his knees in a fall. Right now his job involves operating and maintaining heavy equipment on base, and he is listed currently as “undeployable.” He and his fellow Oath Keepers on base spend their free time researching what they call the “New World Order” (see September 11, 1990) and conspiracies about detention camps. Pray is one of the few active-duty members who will agree to have his name made public; Rhodes encourages active-duty soldiers and police officers to hide their membership in the group, saying a group with large numbers of anonymous members can instill in its adversaries the fear of the unknown—a “great force multiplier,” he calls it. Pray worries that the CIA is monitoring his phone calls and insists that unmarked black cars follow him when he drives. A fellow Fort Drum Oath Keeper who only allows his first name of Brandon to be used, and who is also “undeployable” due to his own injuries, says that the off-limits areas of Fort Drum contain concentration camps. Sharrock notes that the soldiers’ behavior might be considered “paranoid,” but writes, “Then again, when you’re an active-duty soldier contemplating treason, some level of paranoia is probably sensible.”
Stewart Rhodes - Rhodes, a Yale graduate and constitutional lawyer, is working on a book currently titled We the Enemy: How Applying the Laws of War to the American People in the War on Terror Threatens to Destroy Our Constitutional Republic. He is an Army veteran who was honorably discharged after injuring his spine in a parachute jump, and worked for a time supervising interns in Ron Paul’s Congressional office. He briefly practiced law in Montana, has worked as a sculptor and a firearms instructor, and writes a gun-rights column for SWAT magazine. He describes himself as a libertarian, a staunch constitutionalist, and a devout Christian. He decided to abandon electoral politics in 2008 after Paul’s presidential bid failed, and turned instead to grassroots organizing. In college, he became fascinated with the idea that had German soldiers and police refused to follow orders in the 1930s, Adolf Hitler could have been stopped. In early 2008, he read a letter in SWAT magazine declaring that “the Constitution and our Bill of Rights are gravely endangered” and that service members, veterans, and police “is where they will be saved, if they are to be saved at all!” Rhodes responded with a column predicting a future President Hillary (“Hitlery”) Clinton turning the US into a despotism while dressed in her “Chairman Mao signature pantsuit.” He asked readers if they intended to follow this “dominatrix-in-chief,” hold militia members as enemy combatants, disarm citizens, and shoot all resisters. If “a police state comes to America, it will ultimately be by your hands,” he wrote. You had better “resolve to not let it happen on your watch.” Shortly thereafter, he set up a blog he called “Oath Keepers,” asking for testimonials from soldiers and veterans, and began gaining popularity. Military officers offered assistance. A Marine Corps veteran invited Rhodes to speak at a local tea party event. Paul campaigners provided strategic advice. In March 2009, Rhodes attended a rally staged by a pro-militia group, and in front of the crowd of some 400 participants, officially launched the Oath Keepers movement (see March 9, 2009). Buchanan and Beck have praised Rhodes, with Buchanan predicting that he “is headed for cable stardom.” Conspiracy theorist Alex Jones of Infowars.com has repeatedly featured Rhodes and the Oath Keepers on his radio talk show.
Attracts Attention of Anti-Hate Organizations - The Oath Keepers has come to the attention of anti-hate organizations such as the Anti-Defamation League and the Southern Poverty Law Center (SPLC), which have cited the group in their reports on rising anti-government extremism. Rhodes has accused the SPLC of trying “to lump us in with white supremacists and neo-Nazis, and of course make the insinuation that we’re the next McVeigh,” referring to Oklahoma City bomber Timothy McVeigh (see 8:35 a.m. - 9:02 a.m. April 19, 1995). Author David Neiwert, an expert on right-wing groups, tells Sharrock that it would be a mistake to term them another amalgamation of “right-wing crackpots” or “extremist nimrods,” as other press outlets have done. “[T]he reality is a lot of them are fairly intelligent, well-educated people who have complex worldviews that are thoroughly thought out,” Neiwert says. Neiwert and Sharrock tie Rhodes’s message to the much earlier views expressed by members of the now-defunct Posse Comitatus (see 1969), and note that the last reemergence of this brand of rhetoric took place during the last time a Democrat, Bill Clinton, was in the White House. Today, groups like the Oath Keepers use the Internet, particularly Facebook and YouTube, and cable news networks, to connect with like-minded citizens around the world. “The underlying sentiment is an attack on government dating back to the New Deal and before,” Neiwert says. “Ron Paul has been a significant conduit in recent years, but nothing like Glenn Beck and Michele Bachmann [R-MN] and Sarah Palin (see October 10, 2008)—all of whom share that innate animus.” While Rhodes and most Oath Keepers say they will only begin active disobedience under the delineated circumstances laid out by the group, some members have gone down their own paths of violence. Oath Keeper Daniel Knight Hayden set off a controversy last April 15 with a barrage of messages on Twitter stating his intention to “START THE KILLING NOW!” by engaging in a gun battle at the Oklahoma State Capitol and urging other Oath Keepers to join him (see April 14-15, 2009). Rhodes denounced Hayden, but Neiwert notes that Rhodes’s inflammatory and inciteful rhetoric can have what he calls “an unhinging effect” on people inclined toward violent action. “It puts them in a state of mind of fearfulness and paranoia, creating so much anger and hatred that eventually that stuff boils over.” In January, ex-Marine and Oath Keeper spokesman Charles Dyer, who beat a treason charge for advocating armed resistance to the government, was arrested on charges of raping a 7-year-old girl, and authorities found stolen military weaponry at his home; some militia groups have hailed Dyer as “the first POW of the second American Revolution,” but Rhodes removed information about him from the organization’s Web sites and now denies he was ever a member (see January 21, 2010). Rhodes says he and his Web staff are “overwhelmed” with the need to delete messages encouraging racism and violence from their blog, and recently he shut down one Internet forum because of members’ attempts to use it to recruit for militia organizations. Chip Berlet of the watchdog group Political Research Associates and an expert on far-right movements equates Rhodes’s rhetoric to yelling fire in a crowded theater. “Promoting these conspiracy theories is very dangerous right now because there are people who will assume that a hero will stop at nothing.” What will happen, he adds, “is not just disobeying orders but harming and killing.” Rhodes acknowledges that to follow through on his rhetoric could be risky, and reminds Sharrock that freedom “is not neat or tidy, it’s messy.”
Gold Standards, Muslim Rights, and Treasonous Federal Institutions - During a recent meeting at a North Las Vegas casino, Sharrock took part in discussions of whether Muslim citizens had rights under the Constitution, why the Federal Reserve was a treasonous institution, why the government should be run under Biblical law and a gold standard, and how abortion-rights advocates are part of a eugenics plan targeting Christians. The group takes no official stance on the US’s war on terror or its foreign engagements in Iraq and Afghanistan, but a recent Oath Keeper member who promoted his dual membership in the Iraq Veterans Against the War (IVAW) on the Oath Keepers blog had his post removed by Rhodes, who called the IVAW a “totalitarian” and “communist” organization.
Expanding Membership - Rhodes says the group has at least one chapter in each of the 50 states, and claims the group has some 29,000 members, not counting the ones who keep their membership off the computer lists. Volunteers are preparing a large “outreach” to soldiers serving overseas. The organization has worked hard to become a staple of tea party events, and tells tea partiers that bringing guns to those events reminds participants of their constitutional rights. The organization has made strong connections with groups such as the Constitution Party and Phyllis Schlafly’s Eagle Forum, and national figures such as Ralph Reed, the former director of Pat Robertson’s Christian Coalition, and Larry Pratt of Gun Owners of America. Elected officials such as Broun, Gingrey, Bachmann, and Steve King (R-IA) have expressed their interest in sponsoring legislation crafted by Oath Keeper leaders. [Mother Jones, 3/2010]

Entity Tags: David Neiwert, Daniel Knight Hayden, Sarah Palin, Ron Paul, Steve King, Stewart Rhodes, Timothy James McVeigh, Chip Berlet, Alex Jones, Ralph Reed, Anti-Defamation League, Charles Alan Dyer, Barack Obama, Posse Comitatus, Southern Poverty Law Center, Paul Broun, Justine Sharrock, Glenn Beck, George W. Bush, FreedomWorks, Eagle Forum, Larry Pratt, Phil Gingrey, Patrick Buchanan, Lee Pray, Mother Jones, Oath Keepers, Constitution Party, Michele Bachmann, Lou Dobbs

Timeline Tags: US Domestic Terrorism

Chief Justice John Roberts tells a group of law students that President Obama and Congressional Democrats turned the recent State of the Union address into a “pep rally” targeting Court justices, and questions the need for justices to attend the event. During the speech, Obama criticized the Citizens United decision allowing corporations to spend unlimited amounts of money on political advertising (see January 21, 2010), and Justice Samuel Alito drew media attention by mouthing the words “Not true” in response to Obama’s remarks (see January 27-29, 2010). Roberts is referring to the fact that many Congressional Democrats cheered the president’s remarks. He calls the event “very troubling,” and says, “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there.” Six of the Court’s nine justices, including Alito and Roberts, were in attendance. Roberts says he is less concerned about the criticism of the Court than the expectation that the justices must sit silently: “Anybody can criticize the Supreme Court.… I have no problem with that. 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. It does cause me to think… why are we there?” Justices Antonin Scalia and Clarence Thomas did not attend, complaining that the address would be a “partisan” event (see February 2, 2010), and Justice John Paul Stevens, who strongly dissented from the Citizens United decision, did not attend due to age and health issues. White House press secretary Robert Gibbs responds strongly to Roberts’s remarks, saying, “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.” [Los Angeles Times, 3/10/2010] Three weeks after Roberts makes his observations, conservative talk show host David Limbaugh will call Obama’s criticisms a “public assault” on the justices. [David Limbaugh, 4/5/2012]

Entity Tags: John Paul Stevens, Barack Obama, Antonin Scalia, Clarence Thomas, John G. Roberts, Jr, Samuel Alito, David Limbaugh, Robert Gibbs, US Supreme Court

Timeline Tags: Civil Liberties

US-Bahrain Business Council logo.US-Bahrain Business Council logo. [Source: US-Bahrain Business Council]The US Chamber of Commerce (USCC), in a methodology made legal by the Citizens United Supreme Court decision (see January 21, 2010), uses foreign-generated funds to disseminate “attack ads” against Democrats running for office in the November midterm elections. The USCC has targeted, among others, Jack Conway (D-KY), Senator Barbara Boxer (D-CA), Governor Jerry Brown (G-CA), and Representatives Joe Sestak (D-PA) and Tom Perriello (D-VA). The USCC, a private trade association organized as a 501(c)(6) that can raise and spend unlimited funds without disclosing any of its donors, has promised to spend $75 million to prevent Democrats from winning in the upcoming elections. The USCC has, as of September 15, aired over 8,000 television ads supporting Republican candidates and attacking Democrats, according to information from the Wesleyan Media Project. The USCC has far outspent any other public or private group, including political parties. The funds for the USCC’s efforts come from its general account, which solicits foreign funding. Legal experts say that the USCC is likely skirting campaign finance law that prohibits monies from foreign corporations being spent in American elections. The USCC has been very active in recent years in raising funds from overseas sources, with such funds either going directly to the USCC or being funneled to the USCC through its foreign chapters, known as Business Councils or “AmChams.” Some of the largest donations come from the oil-rich country of Bahrain, generated by the USCC’s internal fundraising department in that nation called the “US-Bahrain Business Council” (USBBC). The USBBC is an office of the USCC and not a separate entity. The USBBC raises well over $100,000 a year from foreign businesses, funds shuttled directly to the USCC. A similar operation exists in India through the auspices of the USCC’s US-India Business Council (USIBC). The USIBC raises well over $200,000 a year for the USCC. Other such organizations exist in Egypt, Russia, China, Saudi Arabia, Brazil, and other countries, with those nations’ laws making it difficult or impossible for the public to learn how much money is being raised and by which foreign entities. Multinational firms such as BP, Shell Oil, and Siemens are also active members of the USCC, and contribute heavily to the organization. If those firms’ monies are going to fund political activities, the Citizens United decision makes it legal to keep that fact, and the amount of money being used to fund those political activities, entirely secret. It is known that the health insurer Aetna secretly donated $20 million to the USCC to try to defeat the Affordable Care Act (ACA) last year, and News Corporation, the parent of Fox News, donated $1 million to the USCC to use in political activities (see September 30, 2010). The USCC is a strong opponent of Democrats’ efforts to persuade American businesses to hire locally rather than outsourcing jobs to countries such as China and India, and has fought Democrats who oppose free trade deals that would significantly benefit foreign entities. The USCC claims that it “has a system in place” to prevent foreign funding for its “political activities,” but refuses to give any details. [Think Progress, 10/5/2010]

Entity Tags: Joe Sestak, British Petroleum, Barbara Boxer, Aetna, Jack Conway, US-India Business Council, Wesleyan Media Project, US Chamber of Commerce, News Corporation, Royal Dutch/Shell, US-Bahrain Business Council, Siemens, Thomas Perriello, Edmund Gerald (“Jerry”) Brown, Jr

Timeline Tags: Civil Liberties

Florida Republican gubernatorial candidate Rick Scott promises that if elected, he will revive the “Florida for Life Act,” which the bill’s original sponsor now terms the “Florida Right to Life Act” (see February 17, 2010). The proposed legislation would ban almost all abortions in Florida, in defiance of the 1973 Supreme Court ruling making abortions legal throughout the US (see January 22, 1973). The announcement comes in an email from State Representative Charles Van Zant (R-FL), who tells his own supporters, “Scott pledged that he would assist in advancing the Florida for Life Act through both Florida’s House and Senate.” Van Zant tells voters to cast their votes for Scott in light of the candidate’s active support for anti-abortion legislation. Scott’s campaign does not directly confirm the email’s accuracy, but says Scott’s anti-abortion, “pro-life” position is clear. Democratic gubernatorial candidate Alex Sink says she is staunchly pro-choice, and would not support such a bill. Attorney John Stemberger, president of the Florida Family Policy Council, says he likes the bill, but believes the Florida Supreme Court would strike it down if it became law. [Orlando Sun-Sentinel, 10/15/2010; Sarasota Herald-Tribune, 10/15/2010] In November 2010, Scott will win the governor’s seat. [CBS News, 11/3/2010]

Entity Tags: John Stemberger, US Supreme Court, Alex Sink, Rick Scott, Charles Van Zant

Timeline Tags: US Health Care

Katha Pollitt.Katha Pollitt. [Source: Katha Pollitt]Columnist Katha Pollitt, writing for the liberal magazine The Nation, believes that the newly elected Republican majority in the US House of Representatives will do its best to restrict abortions. Pollitt notes that when the newly elected Congress members take their seats in January 2011, there will be 53 additional anti-abortion voices in the House and five in the Senate. Some, like Senator-elect Rand Paul (R-KY) and Representatives-elect Mike Fitzpatrick (R-PA) and Tim Walberg (R-MI) oppose most methods of birth control, in vitro fertilization, and stem cell research, and join Senators-elect Marco Rubio (R-FL) and Pat Toomey (R-PA) in opposing abortions even in the cases of rape or incest. Toomey supports incarcerating doctors who perform abortions. Pollit writes, “Supporters of reproductive rights are looking at the most hostile Congress since abortion was legalized in 1973” (see January 22, 1973). Pollitt writes that in 2011, Republicans in Congress will try to:
bullet Reinstate the global gag rule, lifted by President Obama on his first day in office, which bars recipients of US foreign aid from so much as mentioning abortion in their work, and make it permanent.
bullet Pass the No Taxpayer Funding for Abortion Act, which will make the Hyde Amendment (see September 30, 1976) permanent and reinterpret it to forbid any government agency from funding any program which has anything to do with abortion. Pollitt writes: “For example, if your insurance plan covered abortion, you could not get an income tax deduction for your premiums or co-pays—nor could your employer take deductions for an employer-based plan that included abortion care. (This would mean that employers would choose plans without abortion coverage, in order to get the tax advantage.) The bill would also make permanent current bans like the one on abortion coverage in insurance for federal workers.”
bullet Pass the Title X Abortion Provider Prohibition Act, which would ban federal funds for any organization that performs abortions or funds organizations that do so. Pollitt says the aim of this legislation “is to defund Planned Parenthood, the nation’s largest network of clinics for family planning and women’s health, and in many regions the only provider within reach.”
bullet Beef up so-called conscience protections for health care personnel and hospitals.
bullet Ban Washington, DC, from using its own money to pay for abortions for poor women.
bullet Revisit health care reform to tighten provisions barring coverage for abortion care.
bullet Preserve the ban on abortions in military hospitals.
Pollitt says that the idea behind all of these legislative initiatives is not the banning of abortion, but the disallowing of taxpayer dollars to fund it. Planned Parenthood head Cecile Richards says: “This election was not about choice. The bottom line was jobs and the economy. But if you look at close races where the prochoice candidate won, and where women knew the difference between the candidates on reproductive rights, they voted prochoice and arguably made the difference.” Richards says that if Democrats want to successfully oppose Republicans on these and other legislative initiatives, they will need the active support of pro-choice women. [Nation, 11/10/2010]

Entity Tags: Katha Pollitt, Rand Paul, Marco Rubio, Mike Fitzpatrick, Cecile Richards, Barack Obama, Pat Toomey, Tim Walberg, Title X Abortion Provider Prohibition Act, US House of Representatives, Planned Parenthood, No Taxpayer Funding for Abortion Act

Timeline Tags: US Health Care

Louisiana State Representative John LaBruzzo (R-Metarie) files legislation that would ban all abortions in Louisiana and subject doctors who perform them to charges of feticide. LaBruzzo’s House Bill 587 is specifically designed to be challenged in court, and to end up challenging the 1973 Roe v. Wade Supreme Court decision (see January 22, 1973). The bill would also charge women who have abortions with feticide, but LaBruzzo says that language was “inadvertently” placed in the bill and will be removed before it is heard: “That will be amended out before it is heard in committee. That is a mis-draft; that is not acceptable to me. That would make it too difficult to pass, otherwise.” The bill will be considered in the House Committee on Health and Welfare. LaBruzzo says he filed the legislation after being approached by a conservative religious group that he refuses to name. According to the bill, “The unborn child is a human being from the time of that human being’s beginning… to natural death.” The bill classifies any unborn child as a “legal person” entitled to the “right to life.” LaBruzzo says the bill “would be in direct conflict” with federal court rulings “and [would] immediately go to court. That is the goal of the individuals who asked me to put this bill in.” LaBruzzo says the individual states, not the federal government, should decide how they regulate or prohibit abortions. Louisiana currently sets out penalties ranging from up to five years to up to 15 years for feticide, depending on the intention of the person committing the crime. Planned Parenthood spokesperson Julie Mickelberry says: “This bill is purely political. It will have no impact on the abortion rate. Abortion bans don’t work. It is time for elected officials to stop playing politics; we don’t need laws that threaten women’s health.” If state officials want to lower abortion rates, she says, public officials such as LaBruzzo can work to finance birth control and educational programs on pregnancy prevention. [New Orleans Times-Picayune, 4/20/2011; RH Reality Check, 4/20/2011; RH Reality Check, 4/21/2011] In 2008, LaBruzzo publicly considered a bill that would offer $1,000 to poor women if they had themselves sterilized (see September 23, 2008). In 2009, he attempted to introduce legislation that would mandate drug testing for all welfare applicants (see March 30, 2009).

Entity Tags: Julie Mickelberry, John LaBruzzo, Louisiana State House of Representatives

Timeline Tags: US Health Care

Billionaire Donald Trump, the host of NBC’s Celebrity Apprentice and a rumored candidate for the Republican presidential nomination for 2012, makes the allegation that President Obama was a “terrible” college student who may have been admitted to the Ivy League universities of Columbia and Harvard because of his race. Trump offers no proof of the claim; it was first advanced in 2008 in a Wall Street Journal editorial that implied Obama was a “mediocre” student and demanded to see a college thesis that does not exist (see September 11, 2008). In 2009, author Jerome Corsi advanced the groundless claim that Obama was “placed” in Harvard Law School through the auspices of an African-American Muslim radical and a Saudi prince (see July 21, 2009). “I heard he was a terrible student, terrible,” Trump says. “How does a bad student go to Columbia and then to Harvard? I’m thinking about it, I’m certainly looking into it. Let him show his records.” Obama, like most politicians, has declined to release his college transcripts. Obama graduated from Columbia and then from Harvard Law School, where he graduated magna cum laude and was the first black president of the Harvard Law Review. Trump says Obama’s refusal to release his college transcripts is part of a pattern of concealing information about himself. “I have friends who have smart sons with great marks, great boards, great everything and they can’t get into Harvard,” Trump says. “We don’t know a thing about this guy. There are a lot of questions that are unanswered about our president.” Trump takes credit for “reinvigorat[ing]” the birther controversy, and boasts, “[T]he last guy [Obama] wants to run against is Donald Trump.” In his turn, Trump refuses to disclose his net worth. [NBC New York, 4/26/2011] Conservative pundit Pat Buchanan agrees, claiming on MSNBC’s Hardball that Obama only got into Harvard Law School because of “affirmative action.” Buchanan has made claims of blacks and Hispanics receiving “special treatment” because of “affirmative action” many times in the past (see May 28, 2009, May 31, 2009, June 12, 2009, June 20, 2009, July 16, 2009, and October 13, 2009). “I think the way was very probably greased, and I think he’s probably affirmative action all the way,” Buchanan says, and adds: “[L]ook… you know how the system works. You apply. He’s an African-American kid at a time where everybody’s saying: ‘Let’s bring those guys in. Give ‘em an advantage, move ‘em ahead.’” [Media Matters, 4/26/2011] Liberal pundit Keith Olbermann, writing on his personal blog, ridicules Trump’s demand to see Obama’s college transcripts, writing: “If that doesn’t work, it’ll be his list of movie rentals back in the days of VHS, or his Chicago White Sox ticket stubs to prove he really is a fan, or his laundry delivery records to make sure William Ayers or Jeremiah Wright or Karl Marx hasn’t been slipping him notes inside the suit pockets like they did in that John LeCarre spy novel.… Translated to this sorry chapter of sorry American politics, that means the Radical Right will keep the conspiracy theory going and simply change the focus.… [T]he debate has never been about whether or not Barack Obama was born in the United States of America. The debate has been about whether the Republicans could or can do by rumor, innuendo, and Fox propaganda, what they cannot do by the ballot: find the overarching ‘scandal’ with which to beat a Democratic president.” [Keith Olbermann, 4/27/2011]

Entity Tags: Jerome Corsi, Columbia University, Barack Obama, Donald Trump, Harvard University, Patrick Buchanan, Keith Olbermann

Timeline Tags: Domestic Propaganda

Conservative radio host Laura Ingraham tells her listeners that President Obama’s decision to present his “long form” birth certificate as proof of his US citizenship (see April 27, 2011) proves his 2012 re-election campaign will hinge on race. After playing a montage of audio clips from commentators accusing Obama of racism, or saying that his campaign will focus on race, she tells her audience: “It’s official. The Obama campaign is going to run on race. No? They might not say that, but let there be no misunderstanding of where this is going. This is going right to the heart of liberalism. Liberals see people, not as individuals who are capable of anything if given the opportunity, and freed up and loosened from the bonds of government regulation and bureaucratic restraints. No. They see people as a certain color, or a certain gender, or a certain sexual orientation. They have to be put in these boxes. The favorites boxes of the bean counters. Liberals have always looked at people that way. The truth about race, and this president, is not a pretty truth.… The truth about this administration and race goes right to the core of what liberalism has done to the black family, to minorities in general. The great diversion of liberalists has always been to drop the charges of racism, the spurious and the negative and the perjorative charges of racism [against conservatives], every time they are proven to be incorrect and the way they approach a problem” (see September 4, 1949, and After, March 12, 1956 and After, 1969-1971, 1978-1996, 1980, 1981, March 15, 1982, 1983, June-September 1988, 1990, September 1995, August 16, 1998, March 1-2, 2001, August 29, 2001, March 15, 2002, July 15, 2002, August 2002, September 26, 2002 and After, August 5, 2003, September 28 - October 2, 2003, May 17, 2004, May 18, 2004, October 9-13, 2004, November 15, 2004, November 26, 2004, December 5-8, 2004, December 8, 2004, May 10, 2005, September 28-October 1, 2005, September 30 - October 1, 2005, September 30, 2005, 2006, March 29, 2006, December 2006, January 19, 2007 and After, January 24, 2007, April 2007, April 2, 2007, July 22, 2007, August 21, 2007, September 22, 2008, October 8-10, 2008, October 24, 2008, January 6-11, 2008, November 10, 2008, January 25, 2008, January 31, 2008, February 1, 2008, February 28, 2008, May 19, 2008, June 2, 2008, June 6, 2008, June 26, 2008, August 1, 2008 and After, August 4, 2008, August 4, 2008, August 19, 2008, August 25, 2008, October 7, 2008, October 20, 2008, October 22, 2008, October 28, 2008, November 18, 2008, January 18, 2009, February 24-26, 2009, March 3, 2009, April 7-8, 2009, May 26, 2009, May 26, 2009, May 27, 2009, May 27-29, 2009, May 28, 2009, May 29, 2009, May 31, 2009, June 2, 2009, June 5, 2009, June 7, 2009, June 12, 2009, June 20, 2009, June 25, 2009, July 8, 2009, July 16, 2009, July 21, 2009, July 23, 2009, July 23, 2009, July 27, 2009, July 28, 2009, July 28-29, 2009, August 8, 2009, August 12, 2009, August 19, 2009, September 2009, September 14, 2009, October 13, 2009, February 25, 2010, March 20, 2010, July 14, 2010, July 15, 2010, September 11, 2010, September 12, 2010, September 12, 2010 and After, September 15, 2010, September 18, 2010, September 21, 2010, September 24, 2010, October 22-23, 2010, November 9, 2010, November 12, 2010, December 22, 2010, January 14, 2011, February 20, 2011, March 2011, March 19-24, 2011, April 1, 2011, April 5, 2011, April 14-15, 2011, April 15, 2011, April 22, 2011, April 26, 2011, April 26, 2011, April 26, 2011, April 26, 2011, April 26, 2011, April 27, 2011, April 27, 2011, April 27, 2011, April 27, 2011, April 27, 2011, April 27, 2011, and April 28, 2011). Liberals, Ingraham says, rely on racial politics, divisiveness, and “class warfare” to succeed in the political arena. “[I]n the end,” she says, “it’s kind of all they have, that and abortion.” She derides people “on the left” for attacking billionaire television host and enthusiastic “birther” Donald Trump for being racist (see April 14-15, 2011, April 26, 2011, April 27, 2011, April 27, 2011, and April 28, 2011). Any such charges, she says, are ridiculous. But those charges will be used by anyone who criticizes Trump for his challenge to Obama’s citizenship, she predicts, and cites Trump’s recent exhortation for Obama to “get off the basketball court” and focus on national issues as an example of an unfair charge of racism (see April 27, 2011). “And the very thing the left always starts to accuse the right of is what they are most guilty of,” she says. [Media Matters, 4/28/2011] Ingraham has had her own issues with racism and gender (see 1984, April 1997, and July 17, 2009).

Entity Tags: Barack Obama, Laura Ingraham, Donald Trump

Timeline Tags: Domestic Propaganda, 2012 Elections

Lawyer James Bopp Jr. forms a super PAC, Republican Super PAC Inc., in order to make unlimited financial contributions towards “independent” expenditures in support of Republican candidates in the November 2012 elections. Bopp is joined by Roger Villere, the chairman of the Louisiana Republican Party. Bopp is known for arguing high-profile cases against abortion rights (see November 1980 and After and Mid-2004 and After) and campaign finance regulations (see December 10, 2003 and Mid-2004 and After). He was the lawyer who first worked with the lobbying and advocacy group Citizens United, whose lawsuit gave the Supreme Court the opportunity to greatly deregulate campaign finance law (see January 10-16, 2008, March 24, 2008, and January 21, 2010). According to an email from Bopp and Villere, the Republican Super PAC will coordinate with other independent groups “to bridge gaps in the independent campaigns supporting Republican candidates.… The best way to neutralize President Obama’s unprecedented $1 billion political war chest and the political spending by labor unions and wealthy Democrats is to build a super fund-raising infrastructure for independent expenditure spending.” [New York Times, 5/16/2011] The majority of the money raised and spent on behalf of candidates by super PACs has gone to support Republicans, and not President Obama or Democratic candidates (see January 21-22, 2010, March 26, 2010, August 2, 2010, September 13-16, 2010, September 21 - November 1, 2010, September 28, 2010, October 2010, Around October 27, 2010, November 1, 2010, (May 4, 2011), and May 5, 2011).

Entity Tags: Roger Villere, James Bopp, Jr, US Supreme Court, Republican Super PAC Inc, Barack Obama

Timeline Tags: Civil Liberties

The US Court of Appeals for the First Circuit issues a pair of rulings in two related cases that affirm campaign finance disclosure provisions in Maine and Rhode Island. Both cases were brought by the National Organization for Marriage (NOM), a conservative group that opposes, among other things, state and federal laws granting gays and lesbians the right to marry. The Citizens United ruling (see January 21, 2010) allows for unlimited donations from corporations and labor unions, but also upholds disclosure laws that can be “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” NOM’s pair of lawsuits challenged those areas of campaign finance laws in the two states, asking that NOM’s donors be allowed to remain secret. The court denies the lawsuits, writing in part: “In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the ‘marketplace of ideas’ has become flooded with a profusion of information and political messages. Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin. Disclosing the identity and constituency of a speaker engaged in political speech thus ‘enables the electorate to make informed decisions and give proper weight to different speakers and messages.‘… Additionally, in the case of corporate or organizational speakers, disclosure allows shareholders and members to ‘hold them accountable for their positions.‘… In short, ‘the First Amendment protects political speech; and disclosure permits citizens and shareholders to react to that speech in a proper way.’” Unless the appellate court’s decisions are overturned, the two states’ campaign disclosure statutes will remain in effect. NOM attorney James Bopp used a number of arguments in court that legal analyst Ian Millhiser will characterize as “paranoid fantasies regarding the impact of disclosure laws,” such as the need for anti-gay groups to keep their donors secret to protect those donors from harassment and threats. Industry groups have argued that government officials intend to use disclosure laws to reward their political allies. Millhiser will observe sardonically, “Because there is nothing dirtier than requiring wealthy individuals and corporations to come out from the shadows and reveal which elections they want to buy.” Similar lawsuits against campaign disclosure laws in Florida and New York, which Millhiser will say are the product of a “coordinated campaign” against disclosure, are pending. A lower court dismissed the New York case, and that decision is in the process of being appealed. [NATIONAL ORGANIZATION FOR MARRIAGE et al v. WALTER F. MCKEE et al, 8/11/2011; NATIONAL ORGANIZATION FOR MARRIAGE v. JOHN DALUZ, 8/11/2011; Policy Shop, 8/16/2011; Think Progress, 8/17/2011] Shortly after the Citizens United ruling, Bopp confirmed that this case, like the Citizens United case and others (see Mid-2004 and After), is part of a long-term strategy to completely dismantle campaign finance law (see January 25, 2010).

Entity Tags: National Organization for Marriage, James Bopp, Jr, Ian Millhiser

Timeline Tags: Civil Liberties

MSNBC suspends conservative author and commentator Pat Buchanan for racist material in his most recent book, Suicide of a Superpower (see October 18, 2011 and After). The suspension is indefinite. Buchanan has faced heavy criticism from many civil rights organizations and activists after his book was released; it contains such chapter titles as “The End of White America” and “The Death of Christian America.” The activist group Color of Change has mounted a campaign to have Buchanan suspended from the airwaves. MSNBC president Phil Griffin says that the suspension is indefinite, and will not speculate on when or if Buchanan will return to the network. Griffin says of the suspension, “When Pat was on his book tour, because of the content of the book, I didn’t think it should be part of the national dialogue, much less part of the dialogue on MSNBC.” [Raw Story, 1/7/2012; Associated Press, 1/7/2012; Mediaite, 1/7/2012] Griffin adds: “Since then [the book tour] the issue has become the nature of some of the statements in the book.… Pat and I are going to meet soon and discuss it… a decision will be made.” He calls Buchanan “a good guy,” but says “[s]ome of his ideas are alarming.” [New York Times, 1/7/2012] Buchanan has engaged in a number of racially inflammatory comments and actions in the past. In 2009, he launched a number of racially couched attacks on Supreme Court Justice Sonia Sotomayor before she was confirmed for the high court (see May 28, 2009, May 31, 2009, and June 12, 2009); in one attack on Sotomayor, he asserted that America was “a country built basically by white people” (see July 16, 2009). That same year, he took part in a political event along with a number of white supremacist figures (see June 20, 2009). Buchanan has repeatedly argued that President Obama is an “affirmative action” president, whose every success can be traced to that program in some form (see October 13, 2009). Buchanan has spoken at events sponsored by the openly white supremacist political party American Third Position (see October 15, 2009 and After). Recently Buchanan apologized for calling Obama “your boy” on an MSNBC talk show hosted by Joe Scarborough. Buchanan first gained public notice with the racially fueled remarks and programs he began as a young communications aide in the Nixon administration (see April 1969). [Raw Story, 1/7/2012; Associated Press, 1/7/2012; Mediaite, 1/7/2012] Color of Change issues the following statement: “ColorOfChange.org welcomes MSNBC’s decision to indefinitely suspend Pat Buchanan. However, it’s time for MSNBC to permanently end their relationship with Pat Buchanan and the hateful, outdated ideas he represents. We appreciate this first step and urge MSNBC to take the important final step to ensure that their brand is no longer associated with Buchanan’s history of passing off white supremacy ideology as mainstream political commentary.” [Raw Story, 1/7/2012]

Entity Tags: MSNBC, American Third Position, Patrick Buchanan, Joseph Scarborough, Sonia Sotomayor, Phil Griffin, Barack Obama, Color Of Change

Timeline Tags: Domestic Propaganda

The Republican National Committee (RNC) files a court brief calling the federal ban on direct corporate donations to candidates unconstitutional, and demanding it be overturned. Such direct donations are one of the few restrictions remaining on wealthy candidates wishing to influence elections after the 2010 Citizens United decision (see January 21, 2010). The brief is in essence an appeal of a 2011 decision refusing to allow such direct donations (see May 26, 2011 and After). The RNC case echoes a request from Senator Mike Lee (R-UT) that he be allowed to form and direct his own super PAC (see November 23, 2011), and recent remarks by Republican presidential frontrunner Mitt Romney (R-MA) calling for donors to be allowed to contribute unlimited amounts to candidates (see December 21, 2011). The RNC brief claims: “Most corporations are not large entities waiting to flood the political system with contributions to curry influence. Most corporations are small businesses. As the Court noted in Citizens United, ‘more than 75 percent of corporations whose income is taxed under federal law have less than $1 million in receipts per year,’ while ‘96 percent of the 3 million businesses that belong to the US Chamber of Commerce have fewer than 100 employees.’ While the concept of corporate contributions evokes images of organizations like Exxon or Halliburton, with large numbers of shareholders and large corporate treasuries, the reality is that most corporations in the United States are small businesses more akin to a neighborhood store. Yet § 441b does not distinguish between these different types of entities; under § 441b, a corporation is a corporation. As such, it is over-inclusive.” Think Progress legal analyst Ian Millhiser says the RNC is attempting to refocus the discussion about corporate contributions onto “mom and pop stores” and away from large, wealthy corporations willing to donate millions to candidates’ campaigns. If the court finds in favor of the RNC, Millhiser writes: “it will effectively destroy any limits on the amount of money wealthy individuals or corporation[s] can give to candidates. In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office. Moreover, nothing prevents one corporation from owning another corporation. For this reason, a Wall Street tycoon who wanted to give as much as a billion dollars to fund a campaign could do so simply by creating a series of shell corporations that exist for the sole purpose of evading the ban on massive dollar donations to candidates” (see October 30, 2011). [United States of America v. Danielcytk and Biagi, 1/10/2012 pdf file; Think Progress, 1/11/2012] The RNC made a similar attempt in 2010, in the aftermath of Citizens United; the Supreme Court refused to hear an appeal of its rejection. [New York Times, 5/3/2010; Tom Goldstein, 5/14/2012] Over 100 years of US jurisprudence and legislation has consistently barred corporations from making such unlimited donations (see 1883, 1896, December 5, 1905, 1907, June 25, 1910, 1925, 1935, 1940, March 11, 1957, February 7, 1972, 1974, May 11, 1976, January 30, 1976, January 8, 1980, March 27, 1990, March 27, 2002, and December 10, 2003). Shortly after the Citizens United ruling, RNC lawyer James Bopp Jr. confirmed that this case, like the Citizens United case and others (see Mid-2004 and After), was part of a long-term strategy to completely dismantle campaign finance law (see January 25, 2010).

Entity Tags: Republican National Committee, Halliburton, Inc., ExxonMobil, Ian Millhiser, Michael Shumway (“Mike”) Lee, Willard Mitt Romney, US Supreme Court, US Chamber of Commerce, James Bopp, Jr

Timeline Tags: Civil Liberties, 2012 Elections

Bradley A. Smith, the chairman of the Center for Competitive Politics (CCP) and a former commissioner and chairman of the Federal Election Commission (FEC) during the second Bush administration, writes that the Citizens United decision (see January 21, 2010) and the subsequent flood of corporate money into the political campaign continuum (see January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, January 21, 2010, January 21, 2010, March 26, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, June 23, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 23, 2011, December 1, 2011, January 3, 2012, January 6, 2012, and January 10, 2012) are good for American politics. [US News and World Report, 1/13/2012] According to a 2008 press report, Smith co-founded the CCP in 2006 in order to roll back campaign finance regulations, claiming that virtually any regulation is bad for politics. Smith has refused to reveal the financial sponsors that gave him the “seed money” to start the organization. Smith helped win the landmark SpeechNow case (see March 26, 2010) that allowed for the creation of “super PACs,” the organizations that are primarily responsible for flooding the campaign with corporate money. According to law professor Richard Hasen, Smith and the CCP have worked diligently to bring cases like the SpeechNow case to the Supreme Court so that the conservative-dominated Court can “knock them out of the park.” [Politico, 8/12/2008] Smith now writes: “Super PACs are not an evil tolerated under the First Amendment—they are what the First Amendment is all about. A super PAC, after all, is simply a group of citizens pooling resources to speak out about politics.” He claims that super PACs merely “leveled the playing field” after Democrats and Democratic-supporting organizations consistently outfunded Republican campaigns during elections. Super PACs have kept the presidential campaigns of candidates such as Rick Santorum (R-GA—see February 16-17, 2012) and Newt Gingrich (see December 19, 2011 and January 6, 2012) alive. Smith predicts that Democrats will easily outspend Republicans again once the presidential primary campaign concludes (see Around October 27, 2010), November 1, 2010 and May 5, 2011), but says, “Super PACs, however, will help level the field.” Smith claims that super PACs “disclose all of their expenditures and all of their donors,” and claims that any information to the contrary is wrong, as it is “confusing super PACs with traditional nonprofits such as the NAACP or the Sierra Club.” He concludes: “Super PACs are helping to shatter the old, established order, create more competition, and break the hold of special interests lobbyists—big business actually joined the ‘reform’ community in opposing super PACs in court. Are super PACs harming politics? Of course not. How odd that anyone would think that more political speech was bad for democracy.” [US News and World Report, 1/13/2012] The Citizens United decision specifically allows for donors to super PACs to remain anonymous, despite Smith’s claims to the contrary (see January 27-29, 2010, July 26, 2010, July 26-27, 2010, September 13-16, 2010, September 21 - November 1, 2010, Mid-October 2010, Around October 27, 2010, April 20, 2011, April 21, 2011 and After, July 12, 2011, and November 18, 2011). Republicans have fought to preserve that anonymity (see July 26-27, 2010, May 26, 2011, July 15, 2011, and July 20, 2011). Smith is correct in saying that traditional nonprofit groups must disclose their donors, though many are apparently failing to do so (see October 12, 2010).

Entity Tags: Rick Santorum, Center for Competitive Politics, Bradley A. (“Brad”) Smith, Newt Gingrich, Richard L. Hasen

Timeline Tags: Civil Liberties, 2012 Elections

Juan Williams (left) and Newt Gingrich during the Republican presidential debate.Juan Williams (left) and Newt Gingrich during the Republican presidential debate. [Source: Texas GOP Vote]Fox News commentator Juan Williams, an African-American, takes umbrage with recent comments by presidential candidate Newt Gingrich (R-GA) that he says had unacceptably racial overtones. Williams, moderating a Republican presidential debate in South Carolina with Gingrich and other candidates for Fox News, asks: “Speaker Gingrich, you recently said black Americans should demand jobs, not food stamps (see November 30 - December 2, 2011 and January 5, 2012). You also said poor kids lack a strong work ethic and proposed having them work as janitors in their schools (see November 18, 2011 and After and December 1-2, 2011). Can’t you see that this is viewed, at a minimum, as insulting to all Americans, but particularly to black Americans?” Gingrich responds, “No, I don’t see that.” Gingrich reiterates his call for poor students to earn money by doing janitorial work around their schools, saying that they would earn money, “which is a good thing if you’re poor. Only the elites despise earning money.” Williams presses Gingrich, asking him if his comments, including his reference to Obama as a “food stamp president,” don’t belittle the poor and racial minorities: “My Twitter has been inundated with people of all races asking if your comments are not intended to belittle the poor,” he says. Gingrich retorts: “The fact is more people have been put on food stamps by Barack Obama than any president in American history.… I believe every American of every background has been endowed by their Creator with the right to pursue happiness, and if that makes liberals unhappy, I’m going to continue to find ways to help poor people learn how to get a job, learn how to get a better job, and learn someday to own the job.” The debate audience, described by Think Progress’s Ian Millhiser as “largely white [and] Republican,” cheers Gingrich’s remarks and boos Williams. [Fox News, 1/16/2012; Mediaite, 1/16/2012; Think Progress, 1/17/2012] Williams later says that he believes Gingrich is “pandering” to conservative and presumably racist voters in the audience (see January 18, 2012). Conservative commentator Rush Limbaugh will accuse Williams, not Gingrich, of appealing to racism in his question. “[T]his line of questioning was all racially tinted from Juan Williams,” Limbaugh will say. “Newt Gingrich did not take the bait and answer in a racial context. He answered within the context that we’re all people and that we, as conservatives, want the best for everybody.… [W]e are for everybody doing well, that we conservatives do not see black and white, male, female, gay, straight when we look at people down the line. We see potential. We want the best for everybody. We know what’s holding ‘em back, and that’s government, government central planners, people like Barack Obama, [House Minority Leader Nancy] Pelosi, [Senate Majority Leader Harry] Reid, who look at people and see them with contempt and condescension, see them being incapable, and they treat them that way and they devise systems to deal with them that way, and they keep them forever dependent, which destroys their humanity, which makes us sick. It breaks our hearts.” [Rush Limbaugh, 1/17/2012] Limbaugh later claims that Williams would not have a job if not for “the white guy, conservative who runs Fox News.” [Media Matters, 1/31/2012] Millhiser reiterates the facts that “[t]he overwhelming majority of African-Americans are not on food stamps” and “the majority of [Americans] who receive food stamps are white.” He writes: “It’s deeply disturbing that a man who claims he should be president of the United States cannot understand why his remarks are offensive.… Gingrich’s suggestion that food stamps are somehow a preeminent black issue flies in the face of reality. Worse, it lumps all African-Americans together as federal aid recipients when the overwhelming majority of working-age black men and women are self-supporting taxpayers. Thousands of them are professionals such as doctors or lawyers. One of them is the president of the United States.” [Think Progress, 1/17/2012] Gingrich has a history of making racially questionable remarks and characterizations (see May 27, 2009, June 7, 2009, August 16, 2010, September 12, 2010 and After and December 13, 2011). His claim that Obama has presided over more Americans receiving food stamps than ever before is wrong (see January 17, 2012). And a recent study by the nonpartisan Center on Budget and Policy Priorities found SNAP to be an extraordinarily effective program in helping Americans survive the effects of the recession (see January 9, 2012).

Entity Tags: Barack Obama, Ian Millhiser, Newt Gingrich, Juan Williams, Rush Limbaugh

Timeline Tags: 2012 Elections

The news Web site Politico reports that many Democrats are worried that the “flat-out” opposition of President Obama to super PACs, including the one supporting his re-election, will cripple the Obama campaign’s re-election campaign for 2012, especially in the face of enormous corporate donations for Republican-supporting super PACs. The super PAC that supports Obama, Priorities USA Action, has been in operation since 2011, but has so far raised relatively little—around $5 million—in comparison to Republican super PACs and other such organizations. The super PAC supporting Republican contender Mitt Romney (R-MA), Restore Our Future (ROF—see June 23, 2011 and July 12, 2011), has raised $12 million so far, and other groups such as American Crossroads and its “nonprofit” affiliate, Crossroads GPS, have raised far more. Former South Carolina Democratic Chairman Dick Harpootlian, a member of the Obama campaign’s national finance committee, says: “I don’t think the president is just ambivalent about his super PAC. He’s flat-out opposed to it.… I was at the national finance committee in Chicago, and these are the people with these connections, and nobody was talking, even behind the scenes, about writing checks to the super PAC. That’s a problem. We didn’t make the rules. The president has called out the Supreme Court on Citizens United to their faces (see January 21, 2010, January 24, 2010, and January 27-29, 2010).… But it’s the state of play now, and we have to look at what Romney’s PAC did to [Republican primary challenger Newt Gingrich] in Iowa (see January 3, 2012). It’s dangerous. We can’t unilaterally disarm.” So far, Obama’s campaign has pledged that neither Obama nor his top aides will raise money for super PACs, but the campaign says it realizes the magnitude of the threat posed by the wide-open fundraising from the GOP. In a concession, Obama’s senior campaign staff will allow their top bundlers to ask wealthy contributors for donations to Priorities USA Action. Vice President Joseph Biden has already spoken before a meeting of major donors in November 2011, hours after those donors heard fundraising pitches from Priorities USA Action and other Democratic groups. Democratic strategist Paul Begala, who is helping the Obama campaign reach out to donors, says: “Super PACs are like guns. In the right hands, a gun is useful, essential for defending your country and perfectly acceptable. In the wrong hands, they kill people.… My goal is to make sure the president doesn’t get outgunned.” Obama campaign advisor David Axelrod says of the organizations lining up behind Romney: “They’re talking upwards of half a billion dollars in negative ads aimed at the president from interest groups who don’t disclose and who can raise unlimited amounts of money. That is a very, very concerning thing to me.” [Politico, 1/18/2012]

Entity Tags: David Axelrod, American Crossroads, 2012 Obama presidential election campaign, Willard Mitt Romney, Barack Obama, Restore Our Future, Politico, Dick Harpootlian, Joseph Biden, Priorities USA Action, Newt Gingrich, American Crossroads GPS, Paul Begala

Timeline Tags: Civil Liberties, 2012 Elections

The Obama campaign reverses its previous policy and begins asking major contributors to donate to a super PAC, Priorities USA, that supports President Obama’s re-election. Previously, the Obama campaign, and Obama himself, had been reluctant to ask for donations for the PAC. Since 2010, Democrats have been worried about the effect of the Republican super PACs on the presidential campaign as well as Congressional and even state and local races, but have been divided on how to respond to the flood of money in support of their Republican opponents (see August 2, 2010, September 13-16, 2010, September 24, 2010, October 18, 2010, Around October 27, 2010, Mid-November 2010, August 4, 2011, October 27, 2011, December 1, 2011, January 3, 2012, and January 6, 2012). Obama campaign spokesman Jim Messina says that Republican-supporting super PACs are collectively expected to spend “half a billion dollars, above and beyond what the Republican nominee and party are expected to commit to try to defeat the president. With so much at stake, we can’t allow for two sets of rules in this election whereby the Republican nominee is the beneficiary of unlimited spending and Democrats unilaterally disarm.… We’re not going to fight this fight with one hand tied behind our back.” Messina also says that Obama is strongly against such campaign finance practices, and supports strong action “by constitutional amendment, if necessary” to once again restrict campaign donations from the wealthy. (In January 2012, Politico reported that Obama was completely opposed to the idea of super PACs, including his own—see January 18, 2012.) Joe Pounder of the Republican National Committee issues a statement harshly critical of the decision, which reads in part, “Yet again, Barack Obama has proven he will literally do anything to win an election, including changing positions on the type of campaign spending he called nothing short of ‘a threat to our democracy.’” So far, super PACs supporting Republican candidates have raised over $50 million, putting the Obama campaign at a distinct disadvantage. New York Democratic fundraiser Robert Zimmerman observes: “It’s hard to pass the plate for super PAC money while Democratic leaders have been preaching about the sins of it. But the reality is, it is essential in 2012.” Campaign and White House officials will appear at fundraisers for Priorities USA, though neither the president nor the first lady will make such appearances. Super PACs, created by the Citizens United decision (see January 21, 2010) and a lower court decision in the wake of that ruling (see March 26, 2010), have come to dominate US election activities, particularly in the area of television, radio, and print advertising. Shortly after the Citizens United decision, Obama criticized it during his State of the Union address, saying: “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people, and I’d urge Democrats and Republicans to pass a bill that helps correct some of these problems” (see January 27-29, 2010). However, Congress has been unable to rein in the super PACs, with the most visible effort, Congressional Democrats’ DISCLOSE Act, being successfully filibustered by Senate Republicans (see July 26-27, 2010). CBS News political expert John Dickerson says the Obama campaign has no choice but to emulate the Republicans: “What the Obama camp saw is these fundraising numbers from last year. The Republicans were able to raise so much money. They also saw what Romney was able to do to Newt Gingrich in Florida, just absolutely bury him under ads, and they started to worry about what this was going to mean for the president in the general election.” Dickerson says that with the public perception of Republican frontrunner Mitt Romney (R-MA) being so negative, the ads in support of Romney will undoubtedly be quite negative against Obama. Dickerson expects the Obama campaign to retaliate in kind, saying: “Some of the things that Romney had to do to combat those [primary] attacks, he had to get a little bit more negative, seem a little bit more unpleasant as a candidate.… That’s another reason why [Obama] had to make this decision on super PACs: that this is going to be ugly, it’s going to be on the airwaves, and they need to be able to compete.” [New York Times, 2/6/2012; CBS News, 2/7/2012] The Obama campaign’s announcement comes on the same day as news that the Romney campaign has benefited from $1.22 million in funding from oil, gas, and coal corporations (see February 6, 2012).

Entity Tags: Priorities USA Action, Barack Obama, 2012 Obama presidential election campaign, Jim Messina, John Dickerson, Willard Mitt Romney, Joe Pounder, Robert Zimmerman

Timeline Tags: Civil Liberties, 2012 Elections

The CPAC 2012 logo. The small print at the bottom reads, ‘A project of the American Conservative Union.’ The CPAC 2012 logo. The small print at the bottom reads, ‘A project of the American Conservative Union.’ [Source: CPAC (.org)]The annual Conservative Political Action Conference (CPAC) event, featuring Republican presidential contenders Mitt Romney (R-MA), Newt Gingrich (R-GA), and Rick Santorum (R-PA), also features two noted white supremacists, Peter Brimelow and Robert Vandervoort, as headlined participants. Brimelow, the owner of the anti-immigration, anti-Semitic, and white supremacist Web site VDare.com (see November 26, 2004 and May 2008), is part of a panel discussion titled “The Failure of Multiculturalism: How the Pursuit of Diversity is Weakening the American Identity.” Vandervoort, who writes for the anti-immigrant, white supremacist Web site ProEnglish.com and has ties with the supremacist groups American Renaissance (see July 15, 2002 and September 1995) and the Council of Conservative Citizens (see January 23, 2005, June 2, 2009, and April 16, 2011), speaks on a panel discussion about “High Fences, Wide Gates: States vs. the Feds, the Rule of Law, and American Identity.” Vandervoort also takes part in the “multiculturalism” panel discussion with Brimelow. [Little Green Footballs, 2/8/2012; Newsone, 2/9/2012; Conservative Political Action Conference, 2/9/2012 pdf file] Other Republicans speaking at the conference include Senate Minority Leader Mitch McConnell (R-KY) and Representative Michele Bachmann (R-MN). CPAC also hosts groups such as the anti-gay Family Research Council and the segregationist Youth for Western Civilization. CPAC denied permission for the gay conservative group GOProud to participate in the event, citing the group’s “behavior and attitude” as its reason for denying access. Michael Keegan, the president of the liberal organization People for the American Way (PFAW), issued a statement calling on Romney, Santorum, and Gingrich to “speak out” against Brimelow and Vandevoort’s participation, and adding, “It’s shocking that the CPAC would provide a platform for someone like Brimelow.” [Right Wing Watch, 2/8/2012] CPAC’s main organizer, the American Conservative Union (ACU), refused to heed calls by Keegan and others to repudiate Brimelow and Vandervoort, instead issuing the following oblique statement through spokeswoman Kristy Campbell: “CPAC is proud to have more than 150 sponsors and exhibitors this year. This panel was not organized by the ACU, and specific questions on the event, content, or speakers should be directed to the sponsoring organization. Cosponsors and affiliated events do not necessarily represent the opinions of the American Conservative Union.” [Buzzfeed, 2/8/2012] Conservative blogger Charles Johnson, who in recent years has regularly protested against what he perceives as the increasing prominence of racism on the American political right, writes: “I admit, this one kind of shocks me, and it’s not easy to do that any more. I knew the right wing had gone bug-eyed loony, but this is way beyond the usual xenophobia and paranoid bigotry; this is open white nationalism at the Republican right’s premier high-profile conference, in an election year. Stunning. Masks are dropping all over Wingnutland.” [Little Green Footballs, 2/8/2012] During the panel on multiculturalism, Brimelow and Vandervoort are joined by Representative Steve King (R-IA) in claiming that America’s “identity” is being “weakened” by its acceptance of minority citizens and their cultural influence. Vandervoort claims that “leftist thugs” have attempted to prevent him from taking part in the event as part of their larger attempt to “shut down freedom of speech and freedom of assembly.” Brimelow calls multiculturalism and bilingualism “diseases” that are infecting American society as they work to empower minorities and “suppress traditional” (i.e. white) citizens. Multiculturalism and bilingualism are, he says, a “ferocious attack on the working class.” King discusses his bill that would make English the official language of the United States. King praises Brimelow, telling him that he has “read your books” and says to the gathered onlookers that Brimelow “eloquently wrote about the balkanization of America.” [Right Wing Watch, 2/9/2012] The 2011 CPAC event welcomed the far-right, implicitly racist John Birch Society as one of its sponsors (see April 19, 2010 and December 2011). That year, some conference participants stated their opposition to having white supremacists taking part in the event, opposition that apparently was not raised this year. And in 2011, Joseph Farah, the publisher of WorldNetDaily, was not part of CPAC because organizers did not want him discussing his questions about President Obama’s citizenship (see May 18, 2009 and March 24, 2011). This year, Farah is allowed to return.” [MaddowBlog, 2/9/2012]

Entity Tags: Rick Santorum, Robert Vandervoort, ProEnglish (.com), VDare (.com ), Willard Mitt Romney, Steve King, Newt Gingrich, Youth for Western Civilization, Mitch McConnell, Peter Brimelow, Michael Keegan, Charles Johnson, American Conservative Union, American Renaissance, Council of Conservative Citizens, Family Research Council, Conservative Political Action Conference, John Birch Society, Kristy Campbell, GOProud, Michele Bachmann, Joseph Farah

Timeline Tags: Domestic Propaganda

Bradley A. Smith, the chairman of the Center for Competitive Politics (CCP) and a former commissioner and chairman of the Federal Election Commission (FEC) during the George W. Bush administration, writes a second editorial for US News and World Report defending “super PACs,” the “independent” political entities responsible for infusing millions of dollars into the political campaign system. Smith wrote an editorial in January 2012 defending super PACs, claiming they are the direct outgrowth of First Amendment free-speech rights and are actually good for the campaign system (see January 13, 2012). However, as in his first editorial, Smith makes a number of false claims to bolster his arguments. Such organizations were created in the aftermath of the Supreme Court’s 2010 Citizens United decision (see January 21, 2010) and the following SpeechNow.org decision (see March 26, 2010). He notes, correctly, that until 1974 there were no federal restrictions on super PACs, apparently referring to that year’s amendments to the Federal Election Campaign Act (see 1974), though he fails to note that such organizations did not exist until after the SpeechNow decision. He claims that “[t]here is no evidence that super PACs have led to a greater percentage of negative ads” than in earlier presidential campaigns, though he cites no evidence to that effect. He also claims, as he did in the first editorial, that it is false to claim super PACs “spend ‘secret’ money. This is just not true. By law, super PACs are required to disclose their donors. There are groups that have never had to disclose their donors, non-profits such as the Sierra Club, Planned Parenthood, the NAACP, and the NRA. If you want more disclosure, super PACs are a step forward.” Unfortunately, the Citizens United decision specifically allows donors to super PACs to remain anonymous, despite Smith’s claims to the contrary (see January 27-29, 2010, July 26, 2010, July 26-27, 2010, September 13-16, 2010, September 21 - November 1, 2010, Mid-October 2010, Around October 27, 2010, April 20, 2011, April 21, 2011 and After, July 12, 2011, and November 18, 2011). Republicans have fought to preserve that anonymity (see July 26-27, 2010, May 26, 2011, July 15, 2011, and July 20, 2011). As in the first editorial, Smith is correct in saying that traditional nonprofit groups must disclose their donors, though many are apparently failing to do so (see October 12, 2010). He also claims that super PACs increase competition—“level the playing field,” as he wrote in the first editorial—by allowing Republican candidates to equal the spending of their Democratic opponents. In reality, Republicans have outstripped Democrats in outside, super PAC spending since the Citizens United decision (see Around October 27, 2010, November 1, 2010, and May 5, 2011). Smith bolsters his claim by citing direct campaign spending as offsetting “independent” super PAC spending, such as in the 2010 US House race involving incumbent Peter DeFazio (D-OR), who won re-election even after a $500,000 super PAC-driven effort on behalf of his challenger. DeFazio, Smith claims, “outspent his opponent by a sizable margin and won. Still, for the first time in years he had to campaign hard for his constituents’ support. That’s a good thing.” He cites the presidential campaigns of Republican contenders Newt Gingrich (R-GA—see December 19, 2011 and January 6, 2012) and Rick Santorum (R-PA—see February 16-17, 2012), which have relied on the contributions of a very few extraordinarily wealthy contributors to keep their candidacies alive against the frontrunner Mitt Romney (R-MA), whose own super PAC funding is extraordinary (see June 23, 2011). And, he writes, super PAC spending “improves voter knowledge of candidates and issues. Indeed, political ads are frequently a better source of information for voters than news coverage.” The most important benefit of the two Court decisions and the subsequent influx of corporate money into the US election continuum (see January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, January 21, 2010, January 21, 2010, March 26, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, June 23, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 23, 2011, December 1, 2011, January 3, 2012, January 6, 2012, January 10, 2012, and January 23, 2012), he writes, “is that they get government out of the business of regulating political speech. Who would say that you can’t spend your own time and money to state your own political beliefs? Vindicating that fundamental First Amendment right is good for democracy.” [US News and World Report, 2/17/2012]

Entity Tags: Newt Gingrich, Bradley A. (“Brad”) Smith, Center for Competitive Politics, Peter DeFazio, Federal Election Campaign Act of 1972, Willard Mitt Romney, Federal Election Commission, US Supreme Court

Timeline Tags: Civil Liberties

Jeffrey Toobin in 2007.Jeffrey Toobin in 2007. [Source: Wikimedia]Author and political pundit, Jeffrey Toobin, publishes an in-depth article for the New Yorker showing that Chief Justice John Roberts engineered the 2010 Citizens United Supreme Court decision (see January 21, 2010), moving it from a case that could well have been considered and decided on a relatively narrow basis to a sweeping decision that reformed the nation’s campaign finance structure. Toobin writes that the underlying issue was quite narrow: the conservative advocacy organization Citizens United (CU) wanted to run a documentary attacking presidential candidate Hillary Clinton (D-NY) on “video on demand” cable broadcast (see January 10-16, 2008). Under the McCain-Feingold campaign finance legislation (see March 27, 2002 and December 10, 2003), the Federal Election Commission (FEC) disallowed the broadcast because it would come 30 days or less before primary elections. CU challenged the decision in court (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). [New Yorker, 5/21/2012] Toobin’s article is an excerpt from his forthcoming book The Oath: The Obama White House vs. The Supreme Court. It is dated May 21, but appears on the New Yorker’s Web site on May 14. [Tom Goldstein, 5/14/2012]
Oral Arguments - During the initial arguments (see March 15, 2009), attorney Theodore Olson, the former solicitor general for the Bush administration, argued a narrow case: that McCain-Feingold’s prohibitions only applied to television commercials, not to full-length documentary films. Olson argued, “This sort of communication was not something that Congress intended to prohibit.” Toobin writes: “Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.… If the justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.” However, Justice Antonin Scalia, one of the most vocal opponents of campaign finance restrictions on the Court (see September 26, 1986, December 15, 1986, March 27, 1990, June 26, 1996, June 16, 2003, December 10, 2003, and June 25, 2007), seemed disappointed in the limited nature of Olson’s argument, Toobin writes. The oral arguments expand the case far beyond Olson’s initial position. Olson’s initial intention was to narrow the case so that the Court would not have to expand its scope to find in favor of CU.
Change of Scope - Ironically, the government’s lead lawyer, Deputy Solicitor General Malcolm Stewart, may well have changed the scope of the case in favor of a broader interpretation. Traditionally, lawyers with the solicitor general (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. Toobin writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who had clerked for former Justice Harry Blackmun and a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. But, Toobin writes, Stewart fell into a trap, prompted by Justice Samuel Alito’s pointed questioning about the government’s ability to ban or censor printed materials—i.e. books—under McCain-Feingold—and follow-up questions by Roberts and Justice Anthony Kennedy, that led him to claim incorrectly that the government could indeed censor books under the law. Stewart’s incorrect assertion gave Roberts and his colleagues the chance to overturn McCain-Feingold on the grounds of the First Amendment right to freedom of speech.
Second Arguments - The second arguments were held on September 9, 2009 (see September 9, 2009). The concept of “money equals speech” goes back at least as far as the 1976 Buckley decision (see January 30, 1976), and the five conservative justices were poised to stretch that definition much farther than has previously been done.
Majority Opinion - Toobin writes that Roberts’s decision was then to decide “how much he wanted to help the Republican Party. Roberts’s choice was: a lot.” Roberts assigned the opinion to Kennedy, the “swing” justice who had already written an expansive opinion gutting almost a century’s worth of campaign finance legislation. Kennedy tends to “swing wildly in one direction or another,” Toobin writes, “an extremist—of varied enthusiasms.” In the area of campaign finance, he has consistently “swung” to the conservative side of the argument. He is, Toobin writes, “extremely receptive to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance.” Moreover, Kennedy enjoys writing controversial and “high-profile” opinions. Toobin says that Roberts’s choice of Kennedy to write the opinion was clever: Roberts came onto the Court promising to conduct himself with judicial modesty and a respect for precedent. Kennedy, with his draft opinion at the ready, was a better choice to write an opinion that lacked either modesty or a respect for Court precedence. Roberts, Toobin writes, “obtained a far-reaching result without leaving his own fingerprints.” Kennedy, in an often-eloquent opinion that did not deal with the gritty reality of the Citizens United case, stated that any restraint of money in a campaign risked infringing on free speech. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.… By taking the right to speak from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Kennedy also reaffirmed the Court’s perception that corporations deserve the same First Amendment protections enjoyed by individuals. Kennedy’s opinion found, in Toobin’s words, that “[t]he Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing.” One of the only provisions remaining in McCain-Feingold after Kennedy’s opinion was the ban on direct corporate contributions to candidates.
Fiery Dissent from 'Liberal' Stevens - Toobin reminds readers that the elder statesman of the “liberal” wing of the Court at the time, John Paul Stevens, is a “moderate Midwestern Republican,” one of the last of a “vanishing political tradition.” Though Stevens’s views have migrated left on some issues, such as the death penalty, Toobin writes that the perception of Stevens as a Court liberal is mostly because of the Court’s steady progression to the right. Toobin writes that the 90-year-old Stevens has grown dispirited in recent years, as the conservative wing of the Court, led by Scalia, Alito, and Roberts with Clarence Thomas and often Kennedy in tow, overturned one Court precedent after another. “The course of Citizens United represented everything that offended Stevens most about the Roberts Court,” Toobin writes. Much of Stevens’s objections to the Roberts Court are rooted in procedure; he is deeply troubled by the Citizens United case being transformed by Roberts and his conservative colleagues from a narrowly focused case about a single McCain-Feingold provision to what Toobin calls “an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.” Stevens wrote in his angry dissent, “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” A simple change in the McCain-Feingold law to disallow its application to full-length documentaries the CU case was sparked by, or even to nonprofit organizations such as CU, would have been appropriate, Stevens wrote. He penned a 90-page dissent, the longest of his career, blasting almost every aspect of Kennedy’s decision, starting with Kennedy’s ignoring of precedent and continuing with a refutation of Kennedy’s perception of the Constitutional definitions of “censorship” and “free speech.” Stevens was angered by Kennedy’s equivocation of corporations with people. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” he wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress has drawn significant distinctions between corporations and people for over a century, he wrote: “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act” (see 1907). He even challenged Kennedy’s stated fear that the government might persecute individuals’ speech based on “the speaker’s identity,” sarcastically noting that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ [a famed Japanese propagandist] during World War II the same protection as speech by Allied commanders.” According to Toobin, Stevens’s law clerks disliked the dated reference, but Stevens, a Navy veteran, insisted on keeping it. Toobin writes that “Stevens’s conclusion was despairing.” Stevens concluded: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.… It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Toobin notes that as “impressive” as Stevens’s dissent may have been, it was Kennedy’s opinion that “was reshaping American politics.”
Reaction - In his State of the Union address six days after the verdict, President Obama referenced Justice Ruth Bader Ginsburg’s concerns about foreign influence in American politics by saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections” (see January 27-29, 2010). Democrats cheered as Obama said, “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Alito’s mouthing of the words “not true” stirred some controversy; Toobin notes that Alito was technically correct, as “Kennedy’s opinion expressly reserved the question of whether the ruling applied to foreign corporations.” However, Toobin notes, “as Olson had argued before the justices, the logic of the Court’s prior decisions suggested that foreign corporations had equal rights to spend in American elections.” With the Citizens United decision and a March 2010 decision that allowed for the formation of “super PACs” (see March 26, 2010), the way was clear for what Toobin calls “presidential campaigns in 2012 that were essentially underwritten by single individuals.” He notes the billionaires that almost single-handedly supported Republican presidential candidates (see February 21, 2012, February 16-17, 2012, February 21, 2012, March 26, 2012, and April 22, 2012), and the efforts of organizations like Crossroads GPS that have to date raised tens of millions of dollars for Republican candidates (see May 2, 2012). Toobin believes that the Court will continue to deregulate campaign finance, noting the 2011 decision that invalidated Arizona’s system of public financing that state enacted after a series of campaign finance scandals (see June 27, 2011). He concludes, “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” [New Yorker, 5/21/2012]
Criticisms of the Article - Toobin’s article will engender significant criticism, from nuanced questioning of particular elements of Toobin’s story (see May 14, 2012) to accusations of outright “fictionalizing” (see May 17, 2012) and “libelous” claims (see May 15-17, 2012).

Entity Tags: Clarence Thomas, US Supreme Court, Citizens United, Barack Obama, Antonin Scalia, Anthony Kennedy, American Crossroads GPS, Tillman Act, Bipartisan Campaign Reform Act of 2002, Theodore (“Ted”) Olson, Ruth Bader Ginsberg, John Paul Stevens, John G. Roberts, Jr, Malcolm Stewart, Jeffrey Toobin, Republican Party, Hillary Clinton, Samuel Alito, Federal Election Commission

Timeline Tags: Civil Liberties

Columnist Adam White, writing for the conservative Weekly Standard, lambasts a recent article by the New Yorker’s Jeffrey Toobin about the internal decision-making process behind the 2010 Citizens United decision (see January 21, 2010 and May 14, 2012). Most publications describe the decision as allowing corporations and labor unions to spend money freely in campaigns, but White defines it differently, calling it an affirmation of “a corporation’s First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office” (see January 21, 2010, January 22, 2010, and February 2, 2010). Law professors Tom Goldstein and Jonathan Adler have found some “spin” in Toobin’s account of events (see May 14, 2012), and law professor Richard Hasen has asked that a draft dissent highly critical of the decision and its methodology be made public to shed light on Toobin’s narrative (see May 14-16, 2012). However, White goes significantly further than any of the professors in tarring Toobin’s article, and in some instances Toobin himself. White writes flatly that everyone outside of “Toobin’s base,” presumably meaning liberals who comprise “Chief Justice [John] Roberts’s critics,” is “skeptical” of the article, and cites Goldstein and National Review columnist Ed Whelan (see May 15-17, 2012) as examples of those presumed skeptics who have “poured cold water” on the story. According to White, Toobin “front-load[ed] his story with easily disprovable mischaracterizations of the case” that [e]ven a cursory review of the case’s briefs, and contemporary news coverage, disproves Toobin’s thesis” of Roberts using a narrowly drawn case to revamp and invalidate most of US campaign finance law. White writes that Toobin’s characterization of the narrow focus of the case is wrong: “The First Amendment stakes were well known, and much discussed, in the run-up to oral argument.” He cites the New York Times editorial published at the time of the first arguments, in March 2009 (see March 23, 2009), warning that if the Court ruled in favor of Citizens United, “it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.” He also notes that respected court reporter Lyle Denniston warned before the oral arguments that the Citizens United case threatened to deliver “a sweeping rejection of Congressional authority to regulate campaign spending by corporations.” Toobin himself made some of the same arguments on CNN the day of the arguments, White notes. He calls Toobin’s version of events in the article a “clumsy fictionalization of the case” designed to vilify Roberts. He also questions Toobin’s characterization of the first arguments from Citizens United (CU) lawyer Theodore Olson, going considerably further than either Goldstein or Adler in accusing Toobin of fundamentally misrepresenting Olson’s original, narrowly focused case. According to White, Olson’s opening argument claimed that the restriction being challenged by CU was “unconstitutional as applied to the distribution of Citizens United’s documentary film through video on demand… [it] plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech.” White claims that Olson cited First Amendment grounds in a portion of the arguments not reported by Toobin, and quotes from Olson’s argument; that quote describes Olson’s citation of the 2007 case Wisconsin Right to Life (WRTL—see Mid-2004 and After and June 25, 2007), which indeed used First Amendment grounds for its successful positioning, and quotes Olson as saying the WRTL decision “errs on the side of permitting the speech, not prohibiting the speech.” White accuses Toobin of deliberately misrepresenting Olson’s argument to “advanc[e] his own anti-Roberts narrative.” White is unable to check the accuracy of Toobin’s behind-the-scenes narrative, as Toobin’s sources are not revealed in the article, but White is “skeptical,” writing, “Given Toobin’s inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin’s description of the justices’ private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?” Like Adler, Toobin questions the ethics of the person or persons at the Court who “leaked” the story to Toobin. [Weekly Standard, 5/17/2012]

Entity Tags: New York Times, Ed Whelan, Adam White, Jeffrey Toobin, Lyle Denniston, John G. Roberts, Jr, Theodore (“Ted”) Olson, Jonathan Adler, Richard L. Hasen, Thomas Goldstein

Timeline Tags: Civil Liberties

Retired Supreme Court Justice John Paul Stevens lambasts the Court’s 2010 Citizens United decision (see January 21, 2010), in which he strongly dissented (see May 14, 2012). Stevens has criticized the decision in earlier statements. He continues that trend in a speech given to the Clinton School of Public Service at the University of Arkansas. He agrees with President Obama’s warning that “foreign entities” could bankroll US elections (see January 27-29, 2010 and October 2010), and challenges the Court to prove that such concerns are “not true,” as Justice Samuel Alito famously mouthed during Obama’s speech at the time by reconciling the Court’s finding that the First Amendment “generally prohibits the suppression of political speech based on the speaker’s identity” with its subsequent decision to uphold a ban on campaign spending by non-citizens in Bluman v. Federal Election Commission (see August 8, 2011). Alito’s reaction to Obama’s warning “persuade[s] me that that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion,” Stevens says. In doing so, “it will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.” Stevens is referring to corporations and labor unions as “non-voters,” as is the Canadian citizen who filed the Bluman lawsuit. The Bluman case, Stevens says, “unquestionably provided the Court with an appropriate opportunity to explain why the president had misinterpreted the Court’s opinion in Citizens United. [T]he Court instead took the surprising action of simply affirming the district court without comment and without dissent.” Stevens says the two cases pose a legal conundrum—“notwithstanding the broad language used by the majority in Citizens United, it is now settled, albeit unexplained, that the identity of some speakers may provide a legally acceptable basis for restricting speech.” At some point, Stevens says, the Court will have to grapple with the effects of the decision. “I think it is likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial interest. Where that line will actually be drawn will depend on an exercise of judgment by the majority of members of the Court, rather than on any proposition of law identified in the Citizens United majority opinion.” Stevens does not explicitly reference the upcoming Court case where it will have to rule on Montana’s ban on corporate spending (see December 30, 2011 and After, January 4, 2012, February 10-17, 2012, and April 30, 2012), but he says the Court was wrong to overturn a precedent that allows states to bar corporate spending from outside their borders. For states such as Montana with those laws in effect, “those corporate non-voters were comparable to the non-voting foreign corporations that concerned President Obama when he criticized the Citizens United majority opinion.” He says, “If the First Amendment does not protect the right of a graduate of Harvard Law School to spend his own money to support the candidate of his choice simply because his Canadian citizenship deprives him of the right to participate in our elections, the fact that corporations may be owned or controlled by Canadians—indeed, in my judgment, the fact that corporations have no right to vote—should give Congress the power to exclude them from direct participation in the electoral process.” [Huffington Post, 5/30/2012; University of Arkansas Clinton School of Public Service, 5/30/2012 pdf file]

Entity Tags: Samuel Alito, Barack Obama, Citizens United, US Supreme Court, Clinton School of Public Service, John Paul Stevens

Timeline Tags: Civil Liberties

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