I can't possibly be the only person watching/listening to the Sotomayor testimony and thinking two things:

1. Is there really nothing more important that exploring, exploring, exploring again, whipping like a rented mule, and then probing one more time except the "wise Latina" comment?

and . . .




2. I understand that the Senate is supposed to be an august body, full of deliberation and respect, and polite looking-the-other-way behavior when a colleague does something dumb. But the Democrats have the votes to confirm her. There's no question. Why didn't someone pull Judge Sotomayor aside and say "Look, if they bother you too much about the "Wise Latina" thing, reap 'em a new one. Just go to town. Don't worry, we've got your back."

At least then the hearing would be more interesting and less predictable.

What were confirmations like back in the 19th century? Were they this political? I'm betting that nobody asked Taney what his views were on slavery before he was confirmed.

Labels: AndrewMC, Supreme Court

The topic below was originally posted on my blog, the Intrepid Liberal Journal.

President Obama will soon announce his nominee to replace retiring Justice David Souter on the Supreme Court. It’s a critical nomination with long-term ramifications for civil liberties, executive power, management-labor relations, the environment and consumer rights. Hence, it is vital the public know whether the judicial philosophy and ideology of any prospective nominee to the court is compatible with their sensibilities and values. Ideally, all nominees would be forthcoming about their philosophy as the senate either confirms or rejects them with full knowledge of the sort of justice they’re likely to be.

Regrettably, that hasn’t occurred since the 1987 Senate confirmation hearings for Robert Bork. At the time, Bork scared the hell out of me and I’m grateful his nomination was not approved. Even so, I always respected how Bork was upfront about his ideology and judicial philosophy. Bork didn’t hide what he was and the American public and the Senate had a clear picture of what sort of justice he would be.



Sadly, since the Bork nomination fight, our Supreme Court appointments process has become a Kabuki dance existing in an alternate reality. Nominees are conditioned to reveal as little as possible about their judicial philosophies or even avoid acknowledging they have one. A pitiful example is Chief Justice John Roberts who famously compared Supreme Court justices with baseball umpires during his 2005 Senate confirmation hearings:

“Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Contrary to John Roberts’ testimony, a Supreme Court justice has a unique and expansive role in our society. The Constitution contains too many abstract references and clauses for any justice to merely adhere to the rules based on a strict interpretation of the text. An example is the Constitution’s Equal Protection Clause. As the highly regarded legal scholar, Christopher L. Eisgruber, observes in his 2007 book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press) the Equal Protection Clause reads,

“’No state shall deny to any person within its jurisdiction the equal protection of the laws.’

How should judges interpret this clause? Presumably, they must ask what it means for the laws to protect people equally. Yet that question takes judges straight to the nerve center of American ideological controversy. Liberals and conservatives disagree passionately about what it means for the laws to protect groups equally and about when it is appropriate for the laws to treat one group better than another.”

Overall, Eisgruber argues that due to the Constitution’s many vague abstractions, a Supreme Court justice is disproportionately influenced by their individual values and ideology in determining when it’s appropriate for the court to intervene and even overrule our country’s prior laws. How could it be otherwise when the Constitution’s text is frequently subject to broad interpretation as with the Equal Opportunity Clause? Hence, it is imperative the senate determines if the judicial philosophy of a Supreme Court nominee is representative of the country.

Some legal scholars such as Yale law professor Stephen Carter have argued that nominees to the Supreme Court should simply stay home because their testimony has ceased to contribute anything substantive. There is definitely merit to Carter’s point of view. Nominees since Robert Bork typically speak only in vague platitudes about practicing “judicial restraint” and are ultimately voted up or down based upon their reassuring television appeal.

Eisgruber however argues in his book that the senate should ask more open-ended questions of prospective nominees about their judicial philosophies. Too often senators attempt to trap nominees with “gotcha” questions or ask about specific issues such as abortion that that can easily be deflected to “preserve their integrity” prior to joining the Supreme Court. Ultimately, little is learned and unless opposition interest groups get any traction or a scandal emerges, the nominee is likely to sail through without defending or explaining their ideology.

One example of the sort of question Eisgruber suggests asking is,

“The late Chief Justice William Rehinquist wrote that ‘manifold provisions of the Constitution with which judges must deal are by no means crystal clear in their import, and reasonable minds may differ as to which interpretation is proper.’ Could you tell us something about the values and purposes that will guide you when you interpret provisions like the Equal Protection Clause? How do those values and purposes distinguish your approach from those taken by other justices?”

Eisgruber contends this approach has a better chance of determining the sort of justice a nominee is likely to be. He also argues that it will facilitate more moderate nominees and discourage stealth extremists.

Eisgruber, who previously clerked for U.S. Court of Appeals Judge Patrick E. Higginbortham (a conservative) and Supreme Court Justice John Paul Stevens (a liberal), agreed to a podcast interview with me over the telephone about his book. Among the topics discussed were the insights he gained clerking for two ideologically different judges, the importance of justice’s philosophy about judicial review, President Obama’s desire for a justice with “empathy” and whether we might have a justice who did not serve in the appellate courts. I also asked him numerous questions from my liberal perspective, including whether ideological balance on the court would be better served by appointing assertive liberals instead of moderates.

Please refer to the flash media player below.



This interview can also be accessed at no cost via the Itunes store by searching for either the “Intrepid Liberal Journal” or “Robert Ellman.”

Labels: Barack Obama, Christopher L. Eisgruber, David Souter, Robert Bork, Supreme Court

Also posted at Daily Kos and Invictus

First it was the leak of the 2003 Standard Operating Procedures (SOP) Manual for Guantanamo. The SOP included procedures for psychological torture and abusive conditions of detention, including long-term isolation to foster dependence upon interrogators and "enhance and exploit the disorientation and disorganization felt by a newly arrived detainee in the interrogation process". Also, prisoners were hidden from the International Red Cross.

The military assured critics that "SOPs by definition, undergo periodic review and change as situations warrant. Detention operations at JTF-GTMO have evolved significantly since 2003..."

Now Wikileaks has released a copy of the 2004 SOP, and guess what? Nothing changed, unless (mostly) for the worse! As the Washington Post notes, since the Supreme Court "prepares to hear arguments this week on the rights of enemy combatants at Guantanamo Bay, Cuba, the public is getting another peek at how detainees have been treated there."

Wikileaks has analyzed the changes from the 2003 to 2004 Guantanamo SOP, even placing copies of the relevant passages changed in a side-by-side fashion.

Nothing has changed regarding the conditions of confinement. Detainees are still placed in a minimum of 30 days total isolation upon transfer to Guantanamo. Such isolation can be extended, if approved.

Use of Isolation in Interrogations

How bad is isolation? Bad enough that Donald Rumsfeld himself felt it warranted a "caution" in his April 16, 2003 memo authorizing certain aggressive forms of interrogation, i.e., torture.

Caution: the use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approvals for extension of the length of by the appropriate level in the chain of command. This technique is not know to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe that detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and Article 126 which ensures access and basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of this technique.

Rumsfeld -- bureaucrat that he is -- concentrates on the legal obstacles to the use of isolation. But the psychological components have been well studied for decades. The following is from a 1961 article on use of isolation for interrogations written by Lawrence Hinkle, then a psychiatrist at Cornell Medical Center, and a CIA consultant (link to quote can be found here, emphasis in quote is mine):

It is well known that prisoners, especially if they have not been isolated before, may develop a syndrome similar in most of its features to the “brain syndrome”.... They become dull, apathetic, and in due time they become disoriented and confused; their memories become defective and they experience hallucinations and delusions.... their ability to impart accurate information may be as much impaired as their capacity to resist an interrogator....

From the interrogator’s viewpoint it has seemed to be the ideal way of “breaking down” a prisoner, because, to the unsophisticated, it seems to create precisely the state that the interrogator desires: malleability and the desire to talk, with the added advantage that one can delude himself that he is using no force or coercion.... However, the effect of isolation on the brain function of the prisoner is much like that which occurs if he is beaten, starved, or deprived of sleep.

What's Changed in 2004 SOP?

Please reference both documents (2003 and 2004) and Wikileaks analysis page for specifics. But let me summarize as best I can.

First, though, what hasn’t changed.

1. Continuation of prolonged isolation of prisoners.
2. Continuation of use of “Military Working Dogs” for “Psychological deterrence”
3. Hiding of prisoners from the International Committee of the Red Cross
4. Toilet paper is still considered a luxury or “comfort item” that can be utilized as a reward.
5. Restrictions of access to a chaplain.

Both manuals assert that detainees will be treated in accordance with the "spirit" of the Geneva conventions "to the degree consistent with military needs", but never assert that the conventions are actually being followed at Guantanamo. Put into practice, neither manual complies with the Geneva conventions.

Changes from 2003 to 2004

1. The term “Maximum Security Unit” is changed to “Special Housing Unit” (SHU).
2. A Koran is now allowed in SHU, though not prayer bead or prayer cap.
3. New details on use of pepper spray on inmates
4. The right to read camp rules in detainees native language is eliminated.
5. SOP procedures are to be reviewed every 30 vs. 120 days
6. Access and authority of chaplains is further reduced. (The folks at Wikileaks write that this is “probably in response to the actions of James Yee, the prison chaplain who spoke out about conditions at Guantanamo Bay.”)
7. New procedures regarding release of detainees, which are to be orchestrated in part by PSY OPS (psychological operations team).
8. Soldiers are no longer required to carry a “US SOUTHCOM Human Rights Standing Orders” card on their persons at all times.
9. No dictionaries, magazines or books about English or geography.
10. Orwellian changes in language – for instance, references to suicide now called “self-harm”. Also, “hunger strikes” are now “voluntary total fasting”!

More Leaks, But One Conclusion

Wikileaks has also published today a “sensitive US military manual entitled "Detainee Operations in a Joint Environment", which is a defense-wide instruction manual for detainee operations including rendition flights, which has yet to be been analyzed”. A quick look by this author shows that the use of psychologists and psychiatrists in Behavioral Consultant Teams (BSCTs) were endemic across the entire theater of the Global War on Terror (GWOT, as they like to call it). These BSCTs were an integral part of interrogation teams, and their use has engendered their own controversy in medical and psychology circles.

The conclusion to this brief look at another major look at U.S. government secret detention operations is simple and clear. The Pentagon’s denials around mistreatment are false. Their claims that things have changed and revelations are out of date are false. A major gulag has sprung up in our midst over the last five years, and the lack of rights attendant upon this in such centers, and an attack on rights here in the “homeland” continues unabated.

All readers should link out of this article and read Linda Greenhouse’s excellent analysis over at the New York Times on Boumediene v. Bush, which looks at the rights of “enemy combatants,” the suppression of habeas corpus, and the bogus military commissions (really kangaroo courts) set up by Bush and the Pentagon (and approved in advance by Congress) under the 2006 Military Commissions Act. I’ll let Ms. Greenhouse get the final words, so you can savor what is at stake:

Each of the three branches of government has made a series of judgments on how to strike the balance between individual liberty and national security in the post-9/11 era. This latest Supreme Court confrontation, round three of the justices’ encounter with the detainee question, reflects an extraordinary interbranch drama, played out as a series of actions and reactions that has now cycled back to where it began: the role of the federal courts.

This third round is potentially the most momentous, because at stake is whether the Supreme Court itself will continue to have a role in defining the balance or whether, as the administration first argued four years ago, the executive branch is to have the final word.

Labels: BSCTs, civil liberties, Geneva Conventions, Guantanamo, interrogation, isolation, Supreme Court, Torture, Valtin, Wikileaks