Monday, November 5, 2012

A White NBA Team: Automatically Suspicious?


            Minnesota’s NBA franchise, the Timberwolves, have caught some flak early this season for the team’s racial composition.  The team is 70% white, including four-fifths of tis starting lineup, in a league that is 93% black.  Civil rights leaders have complained that the Timberwolves have intentionally constructed their roster to appeal to the team’s predominantly white fan base. Minnesota’s best player, Kevin Love, is the NBA’s most prominent American-born white player, though the core of the team also includes white players from Spain and Russia. The Timberwolves’ general manager, David Kahn, has defended the roster’s international composition, as well as through the notion that the ultimate goal is to compose a team that wins, regardless of color.
            The Timberwolves should not have to deal with accusations that their team is too racially skewed in one direction or the other.  As Kahn asserts, the team includes players from multiple countries, its starting shooting guard (Brandon Roy) is black, and the team made lucrative free agent offers in the offseason to black forwards Jordan Hill and Nicolas Batum, who accepted the contract’s terms but whose original team exercised their right to match the offer and retain him. Moreover, by indicting the team for trying to appeal to a white fan base, the civil rights leaders are really indicting the intolerance of the fan base, not the team.  Recent history does not support that attitude.
            In 1995, the Minnesota Timberwolves bucked years of traditional thought by spending its top draft pick on a high school player (a practice since outlawed by the league), 7’0” black forward Kevin Garnett.  Garnett spent a full decade as the unquestioned face of the franchise.  During that time, Minnesota did not struggle with complaints that the team was catering to a particular racial fan base, nor did they struggle with low attendance figures. The reason is evident: Garnett, now an NBA champion with the Boston Celtics, has been the Timberwolves greatest player and only certain Hall of Famer. The team enjoyed great success and notoriety with Garnett on the roster, and since he’s left, the Timberwolves have not had one winning season.  The activists criticizing the Timberwolves should show more respect for the team’s fan base and acknowledge that Minnesota is more likely trying to adhere to the model that has, across all sports, proven most successful in raising attendance and television ratings: if you win, they will watch.

Monday, October 29, 2012

Baseball, Early Voting, Mom, and Apple Pie: According to Husted, One of These Does Not Belong

 
As reported by the Toledo Blade, Ohio Secretary of State Jon Husted described a recent federal court decision by the 6th Circuit to require Ohio to offer early voting to all voters as an “un-American approach to voting.” Not unconstitutional, not unauthorized, not difficult to manage, un-American. What in the world does he mean? 

Obama for America v. Husted, the case he is referring to, is a battle in the larger war that has taken place in the courts this election season over a variety of new voting laws. In this case, President Obama’s campaign, and the Democratic National Committee sued Ohio’s Secretary of State to block enforcement of an Ohio law that allowed military and overseas voters to have more in-person early voting opportunities than ordinary voters. Specifically, only military and overseas voters were allowed to early vote in the three days before the election. Ohio justified this policy by saying military families face unique challenges in voting and that it was too difficult to administer early voting for all voters during this period. The District Court concluded that this law was a violation of the Equal Protection clause and granted an injunction, which has since been upheld by the Sixth Circuit. The U.S. Supreme Court recently denied Ohio’s request for a stay of this injunction. While the case matters for voters in Ohio, it is by-and-large an election administration issue, which shouldn’t ordinarily rise to the level of un-American activities. So, what is Mr. Husted’s problem?

Most likely he means that the court decision intrudes on states’ rights to administer elections without interference. While Mr. Husted may feel this way, there is an extensive history of federal courts imposing their will on states when states are not running elections in a constitutional way. While Mr. Husted’s comments may rest on states’ rights ideology, he described the decision as an “un-American approach to voting” not an un-American approach to election administration or the treatment of states, which indicates that something else is at work in these comments.

Maybe he means that what President Obama’s campaign is asking will result in a denial of easy access to the polls by servicemen and women. It seems some military organizations do believe this, as many expressed support for Husted. However, as is clear from OFA’s brief, that isn’t at all what they want. What the plaintiffs sought in this case was equal access to the polls for military and ordinary voters. The plaintiffs did not want Ohio to end early voting in the 3-day period before the election. Instead, they wanted to ensure that all eligible voters had the opportunity to vote in that period. Though Mr. Husted could have reacted to the decision by eliminating all early voting in the 3-day period, he instead instituted limited hours early voting for all parties. However, the decision was entirely Mr. Husted’s, so he can’t mean that the decision was un-American because it denied early voting access to military families.

The only conclusion left is that Mr. Husted thinks early voting is in some way un-American. While some consider early voting dangerous and many Republicans don’t like it for a variety of reasons, it seems pretty out-there to suggest early voting is un-American. The general consensus is that early voting creates more access to the polls and helps to eliminate burdens for a variety of voters, which ultimately helps in effective election administration. The typical early voter is more likely than an election-day voter to be member of a minority group. In a country with such a terrible history of voter suppression, any policy that improves minority voter access with no impact on election integrity should be implemented immediately. It is simply common-sense.

So why does Mr. Husted so disfavor early voting for non-military voters? While not wanting to impugn the motives of an elected official of the great state of Ohio, it seems that politics may lie closer to the heart Husted’s declaration than he might have Ohio voters believe. Minority voters tend to vote for Democrats. Military voters tend to be Republicans. With other excuses eliminated, it seems only one answer is left.

Improving access to the polls? That has been the direction of American history with Americans from the American Revolution to the Civil Rights Movements fighting and dying for access to the polls.
Opposing easier voter access at all costs because you don’t like who votes? Now that sounds un-American.

Wednesday, October 24, 2012

The Debate We're Not Having: National Security and Civil Liberties

 

It’s rather remarkable, then, that in Monday’s Obama/Romney foreign policy debate – where we heard how everything from math teacher shortages to Iranian centerfuges impact national security – there was not one word about how civil liberties might affect our national security policy.

The third party candidate debate – hosted by Larry King the night after the last Obama/Romney debate   had a much different tone, and included serious discussion about PATRIOT Act repeal, cessation of drone strikes, and the status of civil liberties under the NDAA. Remarkably – as The Atlantic’s Conor Friedersdorf lauds – these candidates, “so ideologically diverse” agreed that “civil liberties are being trampled on by Democrats and Republicans.”

Given the robust discussion of the relationship between national security and civil liberties at the third party candidate debate, the silence in the Obama/Romney debate is even more striking.

Perhaps, the silence is an extension of David Sirota's analysis of DNC Chairwoman's Wasserman Schultz’s profession last week that she had never heard of Obama's widely reported "kill lists" (which were in the mainstream media as recently as this week) –

the predictable result of a political duopoly that so fundamentally agrees on extra-constitutional national security and civil liberties policies, that those policies are no longer permitted to be part of any “serious” national political discussion.

Do we live in an age where the major political parties consider civil liberties and national security inappropriate for serious discussion? I certainly hope not.

We, the people, must stand together and demand some serious discussion on these issues, or pretty soon, the Department of Homeland Security will roll out its new technology to scan our bodies with a molecular scanner from 164 feet away – and we won’t have even made mention of our concern.

By Kali Cohn

Sunday, October 21, 2012

The Future of Assault Weapons

 
During Tuesday’s Presidential Debate at Hofstra University, a member of the audience asked what the candidates planned to do to “limit the availability of assault weapons.”

The question most likely referred to the shooting this summer in Aurora, Colorado, where James Holmes used a Smith & Wesson M&P15 semi-automatic rifle, along with a pistol, shotgun, and other weapons, to attack people at a Dark Knight Rises movie screening. 58 people were injured and 12 were killed, including 6-year-old Veronica Moser-Sullivan.

Holmes purchased all of his guns legally at Colorado sporting goods stores. While assault weapons like the one Holmes bought had been outlawed in 1994, the assault weapons ban expired in 2004, and Congress declined to renew it. Holmes’ legally-purchased assault rifle was capable of firing 100 consecutive shots; a deadly weapon designed for war combat with power far beyond any conceivable non-military needs.

Governor Romney reaffirmed his alignment with conservative gun rights positions, and redirected the topic to automatic weapons, instead of assault weapons: “I'm not in favor of new pieces of legislation on guns and taking guns away or making certain guns illegal. We of course don't want to have automatic weapons, and that's already illegal in this country to have automatic weapons.”

Fully automatic weapons are legal to own in the United States, but are very tightly regulated by The National Firearms Act of 1934, the Gun Control Act of 1968 and the 1986 Hughes Amendment. Under these regulations, only automatic weapons manufactured and registered with the federal government before 1986 can be bought, owned and sold, and purchasing one requires an FBI background check.

However, Romney had very little to say about assault weapons, the original question topic. Instead, he mainly focused on the idea that changes in culture are needed to reduce gun violence. He mentioned, in particular, education and family structure. “We need moms and dads helping raise kids wherever possible,” he said, and added that before having children, people “ought to think about getting married to someone.” This was likely a message to more conservative voters who believe that changing values about sex and marriage, including tolerance for homosexuality, are the true causes to larger problems in society, including violence. This point also helps resolve a potentially serious issue for those that argue for more gun rights, by reconciling support for more gun accessibility with an opposition to violence. However, the evidence has not shown a connection between single-parent families and gun violence. See Murnan, J., Dake, J. A. and Price, J. H. (2004), Association of Selected Risk Factors with Variation in Child and Adolescent Firearm Mortality by State. Journal of School Health, 74: 335–340.

President Obama, on the other hand, did not take a particularly strong position for more gun control. “We're a nation that believes in the Second Amendment,” he said. And though he did mention the Aurora shooting and supported getting “an assault weapons ban reintroduced,” Obama also seemed more interested in non-regulatory approaches to reducing gun violence such as education and “making sure we catch violent impulses before they occur.”

So returning to the original question on whether much is being planned to reduce availability of assault weapons, the real answer seems to be “very little, if anything,” under either candidate.

But what has gone mostly ignored in this discussion is that availability of weapons may become a moot issue by the end of the decade, as the internet and new technology increase access to deadly weapons beyond what any regulatory approach may be able to keep up with. In August, an engineer claimed to have printed a working gun using a personal 3D printer. And a UT Austin Law student has been seeking funding for a crowdsourcing project to make 3D gun printing easily accessible to anyone via the internet. As 3D printers become inevitably cheaper and more sophisticated, and eventually able to print metal objects affordably, even strict gun regulations may become completely ineffective. It is worth exploring, then, whether there may be any other effective approaches to reducing violence and deaths from increasingly powerful, and available, weapons.

By Leonora Camner

Saturday, October 13, 2012

The Eyes of Texas Cannot be Blind to Race


            At The University of Texas we are reminded that we’re Texas — what starts here changes the world.  Currently, our school is making a Texas sized impact on affirmative action admissions policies.  In oral arguments before the Supreme Court this week, UT’s policy to consider race as a factor among those students who were not automatically admitted under the Top Ten Percent Plan is being contested by Abigale Fischer, the petitioner alleging that the policy is unconstitutional and violates the Court’s 2003 decision in Grutter v. Bollinger.
 
            Engaging in this constitutional debate requires the assumption that a rule forbidding all consideration of race can even be enforced.  If Grutter is overturned, will schools be forced to engage in race-blind admissions?  As a practical matter, this would require negating all cues of racial identity to prevent admissions officers from being influenced by race.  At a minimum, applications could not have identifying information such as the student’s name, their hometown, or their high school.  Involvement in extra curricular activities may even divulge racial identity if the student was involved in a minority association, or community service that might suggest an interest in helping one particular minority group.  Redacting this identifying information runs the risk of going further than making your admissions race-blind because admissions officers will now also be blinded to extra curricular efforts and holistic considerations or a student’s interests.

            Furthermore, admissions essays and personal statements would have to be eliminated entirely.  Universities ask students to write essays describing someone who has made an impact on their life, or discussing an issue of importance to the student.  These essays are designed to get to know the applicant and understand their background, life experience and perspective.  It is not surprising that most students chose to write about their cultural upbringing because these are the experiences that help forge a human being.  While race may not play a role in some people’s lives, for others race is a particularly pivotal.  Race cannot be the only factor considered in admission, but race-blind admissions would be completely impractical in today’s diverse society.

            The Deans of Harvard and Yale Law School recently joined in authoring an op-ed piece in the Washington Post where they agreed “that it is inconsistent with the dignity of persons to consider only race, we firmly believe that it is equally inconsistent with their dignity to refuse to hear what applicants have to tell us about the role that race has played in their lives.”  Higher education produces many of society’s future leaders and role models.  It is essential that these leaders learn in an intellectually diverse environment ripe with debate and multifaceted experiences.  Requiring law schools to turn a blind eye to race would not only be impractical, but it would stifle free intellectual discussion among students with varying cultures and experiences therefore doing a disservice to our universities as well as out society.
           

Sunday, October 7, 2012

Obama Winning Latinos in Spite of Poor Immigration Record


NPR recently reported that the Romney campaign has spent $11 million on ads targeting Hispanic voters—nearly 8 times the amount spent in the last election on the same demographic. Why the new efforts to lure the Latino vote? It’s a matter of margins really.
According to most polls, Mitt Romney only trails Obama by an average of 3 percent in the crucial swing states of Florida, Ohio, and North Carolina. Though the overall election forecasts anticipate a close race, unless something drastically changes in upcoming weeks there will be nothing close at all when it come to the candidates’ share of Latino voters.
The Los Angeles Times found that more than 70% of Hispanics plan to vote for Barack Obama this November compared with 20% who favor Romney. There are now 11 million registered Hispanic voters nationwide, and in a neck-in-neck presidential race their votes may very well decide who sits in the Oval Office next year.
The fact that Latino voters prefer Democrats isn’t exactly breaking news. No one was surprised by the “Latino’s for Obama” hats that speckled the audience of the Democratic National Convention. What is surprising is the Obama administration’s policy towards illegal immigrants—a key issue for many Latino voters—seems to defy the kind of support Latino voters give the President.
Over the last 4 years the Obama administration has deported roughly 1.4 million illegal immigrants, a pace which, if sustained, will put him on track to nearly double President Bush’s deportation number of  2 million in 8 years. The most recent Democratic president, Bill Clinton, deported only 869,676 in 8 years. Barring some change in the administration’s policy towards illegal immigrants, if Obama is reelected, his presidency will deport more illegal immigrants than any administration in U.S. history.
Obama’s deportation statistics raise some interesting questions about the Latino vote and about demographic voting trends in general. With an administration that is more hostile than ever to illegal immigrants—allegedly a key issue for Latino voters—why does Latino support for the Democratic Party seem to be as fervent as ever? Are Latino voters simply unaware of these statistics or are there other issues that supersede immigration concerns?
Part of the problem might by the fact that Mitt Romney’s has no clear policy on immigration, making it impossible to compare his and President’s plans side by side. For now it is sufficient to say that despite Obama’s schedule to surpass the deportation numbers of any President in history, Latino Americans appear ready to give him their vote, and theirs is the vote that looks like it will determine the presidency.  

Tuesday, October 2, 2012

Shark Attacks and Voter Fraud

Have you heard the one about voter fraud in Florida? This past March, the executive director of the ACLU of Florida claimed that although the state needed to pass its voter id law to prevent voter fraud, there were “probably a larger number of shark attacks in Florida than there are cases of voter fraud.” PolitiFact (our fav!) compiled a chart using data from the Florida Department of State, which monitors elections, and the Florida Museum of Natural History in Gainesville, which monitors shark attacks.
Over the last four years, there have been 49 instances of voter fraud and 72 instances of shark attack (specifically, shark-on-human violence). Note: voter fraud here includes cases “deemed legally sufficient for an investigation by the Florida Department of Law Enforcement,” but none of them is presupposed proven; also, some "cases" may represent multiple counts of voter fraud, and the number of cases does not include cases investigated by local supervisors and state attorneys.
So, in short, we can’t draw a clear conclusion from these numbers. But wait a minute—this is ludicrous, isn’t it? I mean, who even cares about the shark attack analogy (apologies to those attacked)? Look again at that number of instances of voter fraud in Florida over the past 4 years. 49? In 2010, there were nearly 8 million voting-age, registered voters in Florida and 5.5 of them voted in the 2010 election. In that same year, there were 10 instances of voter fraud “deemed legally sufficient for an investigation by the Florida Department of Law Enforcement.”
But let’s not pick on Florida. Other states are passing voter id laws, which supporters claim are necessary to thwart voter fraud. PolitiFact has another great article on a News21 “analysis of 2,068 cases alleging election fraud.”
News21’s nationwide investigation took 7 months and the results were released this August. The investigators “sent records requests to elections officers in all 50 states seeking every case of fraudulent elections activity, including registration fraud, absentee ballot fraud, voter impersonation fraud and casting an ineligible vote” for the past 12 years.
It’s important to note here that the investigators asked for and received information about several types of fraudulent activities but then narrowed their focus to the fraud “that voter ID laws are intended to prevent. The News21 team defined that type of fraud as that involving individuals who vote in person on Election Day by impersonating another registered voter.” They then went on to compare that particular type of fraud to the remaining types. “After compiling all the information into an election fraud database, News21 found that 207 cases of other types of election fraud existed for every case of voter impersonation.” Wait…what?
Of course, the News21 analysis has been challenged: “by stating that voter impersonation is the only type of election fraud that voter ID laws could prevent, the News21 report was result-driven, attempting to prove that voter ID is not necessary.” Perhaps that’s true to some extent, but “News21 defends its work as ‘substantially complete’ as the largest collection of election fraud cases gathered by anyone in the country.” News21 analysis itself
In any case, it does bring up a great point about fraudulent activity regarding elections. If we’re so concerned with it, shouldn’t we be targeting those instances of fraud that are, in fact, so much easier to accomplish?

Sunday, March 25, 2012

Roundup: What Are People Saying About H.R. 347

Earlier this month, Obama signed H.R. 347 into law after it received an overwhelmingly positive vote in Congress. The bill is officially called the Federal Restricted Buildings and Improvement Act of 2011. You can read the text of the law here. Controversially, the law permits criminal prosecution of whoever “knowingly enters or remains in any restricted buildings or grounds without lawful authority.” The law defines “restricted building or grounds” as the White House, the Vice President’s official residence, any building where a “person protected by the secret service is or will be temporarily visiting,” and, most alarmingly, any place designated as the location of “a special event of national significance.”

These last two clauses, while likely facially constitutional, potentially allow government officials the authority to capriciously disperse any protest. Virtually any protest held in Washington D.C. could be dispersed on the basis that a Senator may intend to visit the grounds in the near future. Furthermore, could pro-life groups be forbidden to protest outside the venue of a speech of a prominent pro-choice advocate on the basis that his speech is an event of national significance?

Representative Justin Amash, one of only three “nay” votes in the House, wrote on Facebook: “Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it's illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it's illegal to be in that area and has no reason to suspect it's illegal.”

The broad language of the bill has been attacked in the media by the left and the right. Slate has advised readers not to believe government officials who defend the anti-protest bill as a “small tweak of the existing law.” Judge Napolitano, writing for Fox News asked “Can the Secret Service tell you to shut up?” and concluded that the legislation denied protesters the First Amendment guarantee of “useful” political speech.

Eugene Volokh has offered a muted defense of the bill. Volokh offers in the law’s defense that it applies only to those who knowingly enter and remain in a restricted building - those who accidentally enter a restricted area are protected from prosecution. He also points out that the most offensive provisions of the law are only slightly changed restatements of the existing 18 U.S.C. § 1752, which was made into law in 2006. Volokh states that “the law has been in place for six years, through two administrations, without (to my knowledge) a vast amount of abuse.” However, even Volokh admits that “perhaps the reference to “special event of national significance” is too vague. . . . [and p]erhaps there are ways to let the Secret Service do its job while that would still robustly protect speech. . . .”

Martinez v. Ryan: Monstrosity or Mouse?

This week the Supreme Court issued its opinion in Martinez v. Ryan. By a 7-2 vote, the court held that: 

Where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Previously, a claim that has been defaulted by a state court cannot be raised in federal habeas, absent a narrow exception for situations that were external to the inmate—of which attorney error was not one. In so holding, the Court explicitly refused to answer the question that it had actually granted certiorari on, which was whether there is a right to the effective assistance of counsel in an initial review habeas corpus proceeding—that being a proceeding in which a specific claim cannot be raised at any prior time. While the Court’s narrow holding did not provide a new right, it does provide a potential remedy for inmates receiving ineffective assistance of post-conviction counsel.

While criticizing the majority decision, dissenting Justice Scalia labeled the decision a “monstrosity”, and lamented the major impact that the ruling would have on both the states and the court system. Post Martinez, he argues that states would be insane to not provide inmates with post-conviction counsel, because a failure to do so acts as a free pass to federal habeas. His is also distressed with the amount of time that courts will have to dedicate to this new issue.

But, is this an accurate view of the impact of Martinez? For all practical effect, a close reading of the opinion reveals that it may have limited practical scope. By not creating a right to post-conviction counsel, most inmates in non-capital cases will still proceed pro se. Claims of ineffective assistance of counsel, as noted by the majority, are nearly impossible to establish without the benefit of an attorney. So, now inmates without counsel may be able to bring a claim that would be previously defaulted, but the chance that they will be able to establish it is slim. Those that do receive counsel for their post-conviction claims still face a nearly impossible burden. They will have to be able to establish that both their trial counsel and post-conviction counsel provide ineffective assistance under the standard outlined in Strickland v. Washington. This requires both establishing deficient performance and prejudice, and is a difficult burden to meet even one, let alone twice.

Martinez poses an number of interesting questions going forward, but it appears that while it will, at the very least, result in a pleading revolution based upon this new remedy, the practical effect may be slight. Only time will tell.

Does Mad Men get it right?

No one can deny that Mad Men is one of the best television shows of the past decade. Still, although I’ve seen many episodes, I could never really get into it. Every time I watched Mad Men, I found myself boiling with an inexplicable sense of indignation. Perhaps this feeling was partly induced by the rampant racism, sexism, and ethnocentrism that are so central to the show’s story. And perhaps I simply couldn’t relate to any of the characters. But what really makes me uncomfortable is that the show’s portrayal of the 1960s is – to a large extent – realistic.  

In an online discussion for the Wall Street Journal’s Speakeasy blog, Former Solicitor General Walter Dellinger reported finding parallels between Mad Men and his early days in law. He was particularly struck at how well the show demonstrates the prevalence of daytime drinking as well as how it deals with changing gender roles on the 1960s. In addition, Dellinger mentioned in an interview with American Lawyer that “Mad Men also shows a 1960s world of closeted homosexuality and casual anti-Semitism, and gets those just right, too.”

Dellinger is obviously a huge fan. However, he does concede that “[t]he most serious criticism of the show is that while it takes a stance of disapproving of the benighted ways of that era, it also undeniably takes great pleasure in portraying them.” This criticism explains my biggest problem with Mad Men. In many ways, it’s written is such a way as to idealize the 1960s, and it does not do enough to demonize the social inequalities that were so prevalent during that era. Every time I watch the show, I feel compelled to smoke, drink, and treat women as inferior beings. While I’m kidding about the latter of these, the show does have the potential to make viewers complacent with the economic, social, and cultural environments of the 1960s.

On the other hand, considering how realistic Mad Men actually is, it does highlight how far we’ve come in the area of civil rights. This is not to say, of course, that we still don’t have a long way to go. But it does show progress and may even educate those who were unaware of how large the gap actually was. While watching Mad Men may occasionally disrupt my moral compass, I do realize that we no longer live in the 1960s. The last fifty years has brought some extraordinary changes in civil rights jurisprudence. And while I am ecstatic to see these changes, I must admit that I am bit disappointed about letting go of the age-old tradition of day drinking.  

The Conscientious (Patriotic) Objector

Ask anyone close to Lt. Col. Couch and they will tell you how perfect a fit the Marines are for him. Lt. Col. Couch is a devout Anglican who holds religion central to many of his beliefs. “[On my moral compass], my magnetic north points to Christ.” A firm pro-life advocate, he believes that “millions have been murdered by the hands of abortion.” He carries over his respect for human life to his military dealings – while soldiers are engineered to kill, they must still follow a certain code of ethics. 

Mohamedou Ould Slahi, known at Guantanamo (GITMO) as Detainee # 760, had allegedly steered Ramzi bin al-Shibh and three of the 9/11 terrorist hijackers, Mohammed Atta, Ziad Jarrah, and Marwan al-Shehi, to Osama bin Laden. Bin al-Shibh was one of the mastermind planners behind the attack.

In August of 2003, Couch accepted a lead prosecuting role and was assigned a post in the Office of Military Commissions in Arlington, Virginia. There he was given files on several Guantanamo detainees, one of which was Detainee # 760.

Tired of analyzing case summaries through a bureaucratized web of politics, Couch made his first visit to Guantanamo in October of 2003. His own case on Slahi pointed to some fishy behavior. After a few difficult months, Detainee #760 had repeatedly refused to give in to interrogation tactics. Then mysteriously, he started spilling.

“After a while, I just couldn’t keep up with him because things were coming out every day. He was giving like a ‘Who’s Who’ of al Qaeda in Germany and all of Europe.” Couch was confused. “I’ve got in the back of mind what I had seen on that first trip. And I’m thinking, okay, why is he being this prolific? What’s going on? You know, is it physical coercion?”

A colleague hinted to Couch that interrogation methods used on Slahi had been elevated. He had been moved on to the “varsity program,” the nickname given to the Special Interrogation Plan authorized by Secretary of Defense Donald Rumsfeld for the so-called stubborn detainees. As Couch dug deeper, he corroborated his initial suspicions. This is what he found.

When Slahi was being relocated to Guantanamo, he was thankful, “this is America not Jordan, and they are not going to beat you,” he expressed at his detention hearing.

Around May of 2003, just about the time when Detainee # 760 was spilling a great deal of information, Slahi was exposed to what Couch believes to be torture. Not-so-coincidentally the recording equipment began to malfunction when Slahi reports to have been beaten, exposed to extreme temperatures, and abused sexually.
“I was very hurting,” states Slahi’s diary, “for my hands were locked to the floor and I could not stand. Mary was touching me with her sexual parts all over and talking dirty. I am not willing to talk in details about that ugly happen.”

For the next few months, he was physically and psychologically threatened. On July 17, 2003, a masked interrogator mentioned to Slahi that he had had a dream about detainees digging some graves. In the dream, he recalled “a plain, pine casket with [Mr. Slahi’s] identification number painted in orange [being] lowered into the ground.”[i] The same interrogator three days later falsely informed Slahi “that his family was ‘incarcerated.’ ”

Slahi was often threatened for his life. Next, Slahi was taken to a physician, a “doctor who was not a regular doctor [but] part of the team,” he distinctively recalls. “He was cursing me and telling me very bad things. He gave me a lot of medication to make me sleep.” He tolerated for a few weeks but could take it no longer – he broke: “…because they said to me, either I am going to talk or they will continue to do this.”

Couch stopped digging. “For me, that was just, enough is enough. I had seen enough, I had heard enough, I had read enough. I said: ‘That’s it.’ ”

A debate ensued May of 2004 between Colonel Couch and his then-superior chief-prosecutor Army Colonel Bob Swann. Couch had made it clear that he was morally against the techniques and methods being used at Guantanamo and therefore was refusing to partake in the prosecution of any detainees at GITMO.

When Couch asked Swann to cite legal precedent excusing the 1994 treaty’s mandate over methods of torture, he was immediately asked to hand over Slahi’s files.

Although Couch was taken off Slahi’s case, he continued his prosecution of other high-profile detainees.

Monday, March 12, 2012

The Iron First Holds Flowers

Across the world, authoritarian leaders worry that Arab Spring fever will infect their citizenry. In an effort to inoculate themselves against the ire of democracy-seeking public, many leaders are finding utility in tightly-controlled elections—allowing them to legitimize their governments with referendums and contests whose outcomes are pre-ordained.

In Syria, elections were used a tool to quell uprising against President Bashar al-Assad’s increasingly brutal and repressive regime. In the midst of a civil war that (by some reports) has left over 7600 civilians dead, Assad’s government proposed a new draft of the Constitution.  Facially, the proposal provided for the establishment of opposition parties, while still leaving the chief executive with broad-ranging and largely unchecked powers. On February 26, 2012, the same day in which at least 59 civilians were killed, state-sponsored media reported 57% of voting-eligible Syrians went the polls to vote on the proposed constitution—which passed with almost 90% affirmative vote.  Western Diplomats in Damascus estimated actual turnout at around 5%, however, with many voters intimidated by the presence of the Assad regime. Dismissing the elections as “cynical,” U.S. State Department Spokeswoman Victoria Nuland explained that “the referendum that they put forward is ridiculous in that it requires that the state approve any of these patriotic opposition groups." Time will tell whether Assad’s constitutional referendum, along with recent calls to label opposition forces “terrorists,” will succeed in capturing the narrative of legitimacy—and ultimately deter foreign intervention.

The great power to the north, Russia, undertook elections of its own on March 4th .The contest decided who would hold the country’s Presidency for the next six years,  and was closely followed after protests in the wake of December’s Duma (parliamentary) elections. In the Presidential election, and as expected, current Prime Minister Vladimir Putin coasted to victory with 63% of the vote, tearing up as he addressed his supporters during his election night victory speech. International media and human rights groups have been quick to point out election violations, however, with the head Organization for Security and Cooperation in Europe (OSCE) observer Tonino Picula concluding that "[t]here was no real competition, and abuse of government resources ensured that the ultimate winner of the election was never in doubt." Illustrating this point was an Associated Press video appearing to show a ballot box being stuffed at a polling station in Dagestan.  In the day following the election, some 20,000 protesters flocked to Moscow’s Pushkin Square to call for Putin’s resignation. They were met by 12,000 police dispatched to restore order, with hundreds of violent detainments reported by the Guardian. Although it is unclear the trajectory these protests will take, Putin’s Kremlin has been notoriously strict in cracking down on civil unrest.

It’s whether such stagecraft will help pacify, or only intensify, public outcry for democratic representation. It is clear, however, that the faux election is becoming a go-to tool of iron-fisted leaders seeking the appearance of reformers. Drawing back the curtain and exposing this election engineering, while publicly pushing for meaningful reform to election administration, are among the increasing-needed roles for media outlets and human rights groups alike. 

A New Round of School Finance Litigation Underway

The Texas Constitution pays explicit homage to Thomas Jefferson’s educational ideal that the “diffusion of knowledge” is a necessary component of a free society:

A general diffusion of knowledge being essential to the preservation of liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.

Despite this constitutional guarantee of a funded public school system, the Texas Legislature has repeatedly failed to create or maintain a viable school finance framework.

In late 2005, the Supreme Court of Texas warned that the state’s school finance system was “drift[ing] toward constitutional inadequacy.” The governor responded by calling a special legislative session during which state lawmakers enacted a plan to address the issues diagnosed by the Court. In the wake of the economic downturn, however, the continuing deficiencies of the system became clear. The 81st Legislature’s “fix” in 2009 was to plug the multi-billion dollar gap in the public education budget with federal stimulus funds, effectively punting the problem to the next biennium.

Faced with dearth of quick fixes in 2011, the 82nd Texas Legislature again avoided the underlying issues and slashed the public education budget by $5.4 billion. Meanwhile, the Rainy Day Fund—the state’s savings account—contains over $6 billion in idle funds. This legislative evasion has had far-reaching consequences, including teacher layoffs and local attempts to raise property taxes, but many school districts are left with few if any options to raise further revenue because they already taxed at the maximum allowable rate. Moreover, both the legislature and the Texas Education Agency have continued to tighten curriculum and performance standards. For the first time, a new standardized testing scheme expressly aims to “increas[e] postsecondary readiness of graduating high school students,” despite only 1 in 4 high school graduates scoring above the state-defined threshold for college readiness on the SAT or ACT. For a state that seems to be yearning for a Santorum candidacy, these new standards would appear to be the height of snobbery.

While the combination of budget reductions and stringent standards may have been enough to send the system into a tailspin, districts have also had to contend with a ballooning and increasingly diverse student population. The number of school-aged children has grown at four times the national rate over the past decade, and 60% of all students now come from economically disadvantaged households. School districts simply can’t keep up.

All of this has triggered a new round of potentially historic litigation. To date, four major lawsuits have been filed by various coalitions of schools. Two of these involve mostly property-poor districts represented by MALDEF and Equity Center. Another suit was filed by a group of property-rich districts. The fourth and arguably most significant case includes a diverse collection of plaintiff districts that collectively represent more than 1.5 million Texas children, including some of the largest districts in the state. This suit was recently joined by another plaintiff group of pro-charter school parents.

Fundamental change to the school finance system is long overdue. Many of the issues in these cases were previously addressed by the Supreme Court yet failed to be remedied by the legislature. The various plaintiffs represent a substantial swath of the state’s school districts and bridge the demographic rifts that often divide the legislature—urban/rural, rich/poor, etc. At this point, Texas lawmakers have established an unmistakable record of failing to revamp the system with any lasting measure of change. It is therefore incumbent upon the Supreme Court to heed the lessons of the past and issue the strongest possible mandate on the legislature to address this crisis with a qualitatively significant overhaul of public school financing.

Dallas County District Attorney Craig Watkins and the Death Penalty

Dallas County District Attorney Craig Watkins is a perplexing public figure to follow.  First elected in November 2006, he quickly gained widespread accolades for creating the Conviction Integrity Unit within the District Attorney’s Office, which reviews and re-investigates post-conviction claims of innocence using forensic testing.  

Despite this tremendous success, he has been entirely unable to steer clear of controversy.  Very few have attacked him over his conviction integrity work. Rather, Watkins, a Democrat, has been accused of firing prosecutors for partisan reasons (reminiscent of Bush’ U.S. Attorney firing controversy), paying family members out of campaign funds, and struggling with decisions to investigate and prosecute alleged criminal activity by Dallas County constables.

Even in light of his tumultuous history in office, I was surprised by the most recent story that came out in the news: Watkins’ great-grandfather was executed by the state of Texas in 1932.  In and of itself, this is little more than a fascinating item to note in Watkins’ biography.  However, the impact of his revelation is worth consideration: Watkins is again reconsidering his views on the death penalty [link’s behind a paywall, sorry!].

District Attorney Watkins entered office with “a lifelong opposition” to the death penalty, according to the Dallas Morning News.  Soon after taking office, he indicated his willingness to seek the death penalty in capital cases, and by 2010, he stated that he ceased having moral concerns about capital punishment.  Following the disclosure about his great-grandfather, Watkins told the Associated Press in an interview that the system of capital punishment in Texas needs to be reviewed.

At first blush, it’s refreshing to have one of Texas’ district attorneys—who are well known for their propensity to push for severe punishment—willing to take a thoughtful approach to the issue of the death penalty.  The evidence in recent years about the great likelihood of Texas executing an innocent person as well as the considerable research showing the racially disparate impact of the death penalty is troubling, if not for constitutional reasons, certainly for moral ones.  My initial instinct is thus to praise Watkins for grappling with the same issues that I do about the death penalty and doing so in the public eye.

On the other hand, Watkins’ ambivalence about the death penalty implicates one of the major concerns held by those who oppose (or question) the death penalty: that it will be imposed in an arbitrary and capricious manner.  There are quite insidious concerns about arbitrariness, such as greater incidences of death sentences based on race or sex.  It’s also troubling that a district attorney might pursue the death penalty in one case because he or she strongly supports it and the next year, not pursue the death penalty in an identical case because of his newfound opposition. 

This isn’t at all to say that I think Watkins should maintain his support for the death penalty rather than vacillate from support to opposition.  The road to reform is not often a straight one.  Instead, I hope, one day, he can look to his own indecisiveness about the death penalty and the impact it has had on capital cases in Dallas County and cite it as one of many reasons why he anchors himself in the camp opposed to the death penalty.