Daphne Eviatar over at The Washington Independent has a good piece today on why Supreme Court probably will never hear the case of Ali Saleh Kahlah al-Marri even though it has agreed to review it.  Al-Marri is a legal U.S. resident who the Bush Administration alleges was an al Qaeda sleeper agent.  He was arrested on September 11, 2001 as a material witness to the attacks, and since then, the government has held him without charge in the same South Carolina brig where they held Jose Padilla.

As Eviatar notes, the Bush Administration may choose to charge al-Marri as a criminal (and move him to a regular prison) rather than risk losing the case.  Even if they don’t, the Obama Administration is likely to reverse the Bush Administration’s position, either charging al-Marri in civilian courts or releasing him.  Either way, the chances are pretty slim that the case will actually get heard.

That would be unfortunate for two important reasons.

First, it’s largely forgotten now, but al Marri was one of those picked up during the FBI’s post-9/11 profiling orgy dragnet, during which thousands of people were detained only because someone thought they looked or acted suspicious.  Some turned out to be violating immigration law, but in many cases, the FBI held legal U.S. residents and citizens, instead instead naming them as “material witnesses” in the 9/11 investigation.

Since then, the Bush Administration’s disastrous pursuit of the war on terror — torture, indefinite detention, rendition, Abu Ghraib, Guantanamo, etc. — has meant that these events have fallen down the memory hole.  As the Obama Administration weighs what to do to document and assign responsiblility for the Bush Administration’s past actions, it should not overlook the events of the first few months after the attacks, a time when the U.S. Goverment mounted the largest mass round-up of U.S. citizens and legal residents since the detention of Japanese-Americans in World War Two.

By hearing the al-Marri case, the Court would provide an important opportunity to remind Americans that the Bush Administration’s crimes did not start with its interrogation policies, that long before we knew about torture memos, secret renditions, and other crimes, average American citizens and legal residents were locked up just because someone thought they looked suspicious or acted strangely.  By arguing that al-Marri should not be detained, the Obama Administration would demonstrate its willingness to repudiate even the more obscure components of the Bush Administration’s policies.

Second, were SCOTUS to hear and rule on the case, they are likely to overturn the government’s argument that a U.S. resident can be detained indefinitely.  That would close another legal loophole, preventing a future president from taking similar action in the future.

The reality is that we need to do more than merely change the Bush policies and prosecute those responsible.  We also need to change the torture-permissive culture that celebrated such acts.

There are two components to that effort:  legal precedent and popular culture.

In the case of the former, SCOTUS already has begun to create a framework that will make much more difficult any future attempt to pursue Bush-like policies in the future.  The al-Marri case represents an important part of that effort, and therefore should be heard and decided.  (Yes, I am assuming that the case will be decided in al-Marri’s favor, in large part because that would be consistent with every other Supreme Court ruling on Bush’s policies).

In terms of the latter, changing the culture will take more time.  We need to rethink a world in which “24″ can repeatedly show brutal torture without public complaint while half the country goes nuts over the brief appearance of Janet Jackson’s breast.  One way to make that happen is to air out the Bush Administration’s dirty laundry.  The al-Marri case offers just such an opportunity to the incoming Administration.

To draw an analogy, the civil rights movement succeeded when it did not merely because of laws but also because Americans decided that they no longer would tolerate Jim Crow.  That represented not merely a legal triumph but also a fundamental change in American culture.

We need something similar to happen to ensure that we eradicate the torture culture once and for all.  To that end, the Obama Administration should actively encourage the Court to rule in al-Marri’s favor.  Only when we change the way we look at torture will we eliminate the risk of a future President pursuing similar policies.

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We all knew that the myth of the impartiality of Supreme Court justices died with Bush v. Gore, but who’d a thunk that the Supremes would get this nasty about the new Administration even before they take office?

Justice Samuel Alito, channeling Mick Jagger of all people:

At a gala dinner hosted by the American Spectator Wednesday, Supreme Court Justice Samuel A. Alito Jr. cracked wise at Vice President-elect Joe Biden’s expense, raising the Delaware senator’s past brushes with academic dishonesty to the delight of his conservative audience.

Recalling an incident in which an article he submitted to the Spectator was rejected for publication, Alito began by joking that his unpublished piece had detailed how he would vote on the most controversial issues facing the Supreme Court.

Then — in the process of suggesting things had turned out well for him despite this rejection — Alito trained his sights on Barack Obama’s running mate.

“To coin a phrase, in the spirit of the vice president-elect,” Alito began, “you don’t always get what you want, but you get what you need.”

Alito paused before continuing: “Did somebody say that before?”

But even worse, Clarence Thomas wants his colleagues to waste their time on a nutjob’s attempt to void the recent Presidential election:

In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obama’s status as a United States citizen.

Thomas’s action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.

The court has scheduled a Dec. 5 conference on the writ — just 10 days before the Electoral College meets.

The high court’s only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Imagine what would happen had Ruth Ginsberg made a joke about Cheney?  Or if David Souter had tried to overturn the results of the 2004 election?  So much for an end to the culture wars. So much for the impartiality of Supreme Court justices.  These guys aren’t even trying to pretend anymore.

This is something for which we can thank the Bush family.  And given the ages of Thomas and Alito, it’s the gift that will keep on giving for the next twenty or thirty years.

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Apparently, the worst is yet to come for Sarah Palin.  According to a number of sources, CBS will air the last part of its interview with her tonight.  It’s not good news for the McCain campaign

Of concern to McCain’s campaign, however, is a remaining and still-undisclosed clip from Palin’s interview with Couric last week that has the political world buzzing.  The Palin aide, after first noting how “infuriating” it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.

After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.  There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.

Every school kid learns a few Supreme Court cases.  Roe v. Wade is one, but so are Marbury v. Madison, Dredd Scott, Plessy v. Ferguson,  Brown v. Board of Education, even Bush v. Gore.

She. Didn’t. Freaking. Know.

But just for a moment, let’s give the Sarahnator the benefit of the doubt.  Maybe she was sick the week her high school civics class covered the Supreme Court.  Maybe the Alaska Independence Party got a law passed prohibiting any mention of Supreme Court cases in Alaska’s school curriculum.  Maybe none of the six colleges she attended offered an American History class (or maybe she didn’t take any).

Even then, there’s a small problem:  Exxon v. Baker, from June of this year:

The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against Exxon Mobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

And it’s not like Sunshine Sarah didn’t know about it:

Public officials in Alaska are reacting strongly to the U.S. Supreme Court’s decision Wednesday to slash the $2.5 billion damage award to Alaska fishermen to $508 million, nearly 20 years after the Exxon Valdez disaster. . . .

Gov. Sarah Palin [said,]  “I am extremely disappointed with today’s decision by the U.S. Supreme Court,” Palin said. “While the decision brings some degree of closure to Alaskans suffering from 19 years of litigation and delay, the court gutted the jury’s decision on punitive damages.”

Palin added, “It is tragic that so many Alaska fishermen and their families have had their lives put on hold waiting for this decision. My heart goes out to those affected, especially the families of the thousands of Alaskans who passed away while waiting for justice.”

Palin said the decision today undercut one of the principal legs of deterrence for those engaged in maritime shipping in Alaska waters. She called on state and federal agencies to be vigilant and firm in regulating such activities.

This was a huge deal in Alaska, generating bipartisan outrage.  Palin was right in the middle of it.  According to a friend who does public relations for progressive organizations, Palin appeared at several events to express her outrage over the decision.

Clearly she’s panicking.  She is so discombobulated, so completely freaked out that she can’t even remember the biggest Supreme Court case to hit Alaska in many years.  She isn’t stupid.  She’s cratering.

Either that, or Katie Couric scares the living crap out of her.  That doesn’t exactly reassure me that a President Palin could stare down Hu Jintao or Vladimir Putin.

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Earlier today, I wrote about the Republicans’ likely attack on Miranda v. Arizona.  Now, via SCOTUS blog, we have the fall Supreme Court docket.  It includes a case called Arizona v. Johnson:

Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

This is not directly related to the Miranda decision, but it will provide a litmus test of where Alito and Roberts stand on these issues.

The Court will hear arguments on December 3.

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There’s a line from Sarah Palin’s acceptance speech that has rankled quite a few progressives and libertarians:

Al Qaeda terrorists still plot to inflict catastrophic harm on America … [Obama]’s worried that someone won’t read them their rights?

The partisan crowd responded, as you would expect, with an extended standing ovation — in fact, it was one of her most popular zingers in a speech filled with them.

Some have argued that Palin’s comment is merely an extension of McCain’s criticism of Boumediene v. Bush.  In that case, the Supreme Court ruled 5-4 that those being held at Guantanamo have a right to habeas corpus under the Constitution and that the section of the Military Commissions Act that took away that right was unconstitutional.  When Boumediene was announced, McCain called it “one of the worst decisions in the history of this country.”

Here, for example, is what Daniel Larison has to say:

[Palin's speech] is a fundamentally misleading framing of the issue of providing detainees with the ability to challenge the charges against them through a judicial process. . . .The question is whether the government has the right to seize someone, whether a foreigner or a U.S. citizen, accuse him of conspiring with terrorists, strip him of all legal protections and keep him detained indefinitely without access to due process.  The McCain/Palin position is apparently that the government can and should do this.

Andrew Sullivan describess Palin’s one-liner as her position on Boumediene, quoting Larison’s comments in even greater detail.  Daphne Eviatar calls Palin “Dick Cheney in a skirt,” arguing that

Palin’s speech last night suggests that in a McCain-Palin administration, the indefinite detention and abuse of foreigners without charges will remain an issue for at least another four years. And it could well be that if McCain has his way with the Supreme Court, we could easily end up with another decision as infamous as Korematsu.

Larison, Sullivan, and Eviatar have a point — it’s clear that the McCain campaign not only dislikes the Boumediene case but also sees it as an opportunity to hit Democrats for being soft on terrorism.

But the real target of Conservative attacks is not Boumediene.  It’s Miranda v. Arizona, the 1966 Supreme Court ruling that a suspect in police custody has the right to consult with an attorney, as well as the right not to incriminate themselves.  The Court also ruled that suspects must be made to understand their rights, and that police cannot interrogate a suspect without an attorney present unless the suspect has waived these rights.

Conservatives despise Miranda v. Arizona.  They hate it more than any other Supreme Court ruling, with the possible exception of Roe v. Wade.  They regard it as a leading example of judicial activism — which they define as the effort of certain judges (including Supreme Court justices) to create (”legislate”) law, rather than merely interpret it.

Since Nixon, conservatives have argued that judicial activists should be replaced by “strict constructionists,”  who, as Wikipedia wryly notes, believe in “a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation.”

Scalia, Thomas, Roberts, and Alito all are strict constructionists. Were a case challenging Miranda ever to come before the Court, they would favor overturning the original ruling. For example, in Dickerson v. United States (2000), Scalia, joined by Thomas, said

Miranda was objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise that, absent the warnings and an effective waiver of the right to remain silent and of the (thitherto unknown) right to have an attorney present, a statement obtained pursuant to custodial interrogation was necessarily the product of compulsion. . . .Moreover, history and precedent aside, the decision in Miranda, if read as an explication of what the Constitution requires, is preposterous.

Here’s what John McCain had to say about strict constructionism in his acceptance speech at the convention:

We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don’t legislate from the bench.

Much as was the case with Palin’s anti-habeas corpus line, McCain’s statement was greeted with thunderous applause.

I read McCain’s statement as an endorsement of the long-standing conservative practice of appointing strict constructionists to the Court (and to lower courts as well).  Larison therefore is right in suggesting that, under a McCain Administration, we could end up with a strict constructionist-dominated Supreme Court capable of overturning Boumediene.

But that’s not really the point.

The real danger is that such a Court would gut Miranda and other key ruling on defendants’ rights, thus opening the door to arbitrary detentions in the United States.

John McCain has stated repeatedly that he would end the practice of torture and close Guantanamo.  But such promises are meaningless if he also were to appoint Supreme Court justices who don’t believe that the Bill of Rights guarantees the right to silence, the right to legal representation, and the right not to incriminate oneself.

Were a strict constructionist-dominated Court to gut Miranda and other key rulings, Americans would live in a country were executive fiat had replaced the rule of law.  Even if McCain were not to use such powers himself, it would only be a matter of time that a future President — say a President Palin, for example — would suspend fundamental rights in the name of national security.

And that, my friends, is the kind of change that we should never believe in.

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The Hillary zombies will not die:

Thing is, it’s no longer about Hillary for many of them. I sat in on a group of high-powered Clinton supporters gathering in New York last week to create a nonpartisan group called The New Agenda. There was little discussion of the current campaign.

The New Agenda’s agenda is to look out for women’s political interests where the Democratic Party and old-line feminist organizations had failed. The attendees reserved special fury for the Democratic National Committee and its passivity before the misogynistic carnival. One of their specifics is getting MSNBC jester Chris Matthews fired — and if he intends to run for the Senate from Pennsylvania, to end that idea.

Every member has her own plans for November, including for a few, voting for Obama.  Co-founder Amy Siskind, a former Wall Street exec and Clinton fundraiser, told me, “I won’t vote for Obama, but I’m not sure what I’ll do.” Cynthia Ruccia, a Democratic activist from Columbus, Ohio, who twice ran against Republican John Kasich, is supporting McCain — and organizing other Democrats in her swing state to do likewise.

The McCain camp has noticed. Carly Fiorina, former CEO of Hewlett-Packard and McCain’s adviser, met with Siskind in New York. She flew to Columbus to confer with Ruccia, Nancy Hopkins, another New Agenda founder, and 75 other miffed Democratic women. (Hopkins is the MIT biologist who famously protested a suggestion by then-Harvard University President Lawrence Summers that boys might be innately better at science than girls.)

DNC chairman Howard Dean has called Ruccia twice. “He was just waking up to the thought that women around the country were upset over the treatment of Hillary,” she told me. Ruccia tends to doubt that putting Clinton’s name to a roll-call vote will mollify many of the female holdouts. “The train left the station a long time ago,” she said.

I have three words for these folks:  Stevens.  Ginsberg.  Souter.  Think all three will last through another Republican term?  Think you can afford for any of them not to?  How does that fit into your nice little New Agenda?

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