“Cleaning Up The Last Bush/Cheney Mess”: There Is Almost Never A Way To Do So That Pleases Everyone
One of the sad realities of the Obama presidency is that he and his administration have had to spend so much of their time cleaning up messes that were left by Bush and Cheney. I won’t try to capture all of them, but two wars in the Middle East, an economy careening towards a second Great Depression and exploding federal deficits are the three big ones. When President Obama titled his 2015 State of the Union Address “Turning the Page,” a lot of what he was saying is that his administration was finally ready to move on from most of that.
But one intransigent mess lingers on…the prison Bush/Cheney built in Guantanamo, Cuba. President Obama is determined to close Gitmo before his term ends and the White House has been clear that they are drafting a plan to do so.
This week right wing media sites have gone a bit berserk over the fact that two more detainees have been released. The first was the man who was reported to be Osama bin Laden’s bodyguard.
The former detainee, Abdul Rahman Shalabi, 39, is from Saudi Arabia, and he was one of 32 Middle Eastern men who were captured by the Pakistani military along the Afghanistan border in December 2001 and turned over to the United States. He was among the first batch of detainees taken to the prison when it opened at the American naval station in Cuba on Jan. 11, 2002.
Second was the last of several British residents and citizens who have been held at Gitmo.
The Obama administration has notified Congress of its intent to send Shaker Aamer, a suspected al-Qaeda plotter held at Guantanamo Bay, Cuba, for more than 13 years, back to Britain, yielding to a lengthy campaign to secure the British resident’s release, officials said Friday.
For a status update on where things stand with closing Gitmo, the New York Times has some helpful graphs. Of the 771 detainees who have been held there, 657 have been released and 114 remain. Of the 53 who have been cleared for release but are still there, 43 are from Yemen. The Obama administration has been reluctant to repatriate detainees to Yemen due to the chaos that currently exists in that country. Ten detainees have either been convicted or await trial. Finally, as a testament to how badly the Bush/Cheney administration handled all this, the remaining 51 have been recommended for indefinite detention without a trail – mostly due to the fact that evidence has been tainted by their treatment (read: torture).
In December of last year, Pope Francis offered to help the Obama administration in their efforts to close Gitmo. This is very likely one of the topics he and the President discussed in their one-on-one meeting this week. I would assume that the Vatican might be most helpful in working with countries to provide alternatives for the 53 who have been cleared for release. No matter how controversial plans for that might be, you can be sure that whatever President Obama proposes to do with the remaining detainees (10 convicted/awaiting trail and 51 to be indefinitely detained), there will be howls from both sides of the political spectrum. The left will suggest that they shouldn’t be held at all and the right will complain because President Obama’s likely solution will be to move them to a maximum security prison(s) in the United States.
I will simply say that one of the problems that is endemic to cleaning up your predecessors messes is that there is almost never a way to do so that pleases everyone. Nothing more ably demonstrates that than Gitmo. Perhaps the one thing that everyone can agree with is that President Obama deserves some credit for his determination to not leave this one to the next president.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, September 27, 2015
“A Brief Respite From Madness”: Two Problems With The Boehner Atonement Theory
So even as laurels continue to be thrown towards John Boehner on the theory that he’s sacrificed his career to prevent a government shutdown–and hey! maybe save Eximbank and the Highway Bill!–a more serious look at what’s likely to happen next is far less inspiring. The premier budget wizard, Stan Collender, issued this judgment at Politico:
House Speaker John Boehner’s resignation last Friday steeply reduced the likelihood there will be a government shutdown this week but precipitously increased the possibility of a shutdown in December.
And the idea that some sort of Era of Good Feelings Sayanora Tour for Boehner will enable the enactment of long-stalled agenda items of the U.S. Chamber of Commerce isn’t necessarily all that viable either, because the House isn’t the only problem:
[E]ven if the rumors are true about Boehner being willing to work with Democrats to deal with a wide variety of legislative issues (Export-Import Bank, highway trust fund, full-year CR, tax extenders) before he leaves at the end of October, it’s not clear that McConnell will have the political freedom or votes to move these bills. It’s not hard to imagine Sen. Ted Cruz (R-Texas) setting up the equivalent of a campaign office on the Senate floor and, along with other hard-line conservatives, attempting to prevent anything from passing.
And once Boehner really is gone, there’s no reason to assume the atmosphere in the House will get any less poisonous, particularly if conservatives secure an Enforce the Hastert Rule Pledge from the new leadership team:
[D]on’t expect the next speaker to be any more successful at taming the GOP’s tea party wing when the short-term CR expires in December. The new speaker and the rest of the leadership team will just be learning their jobs as they face the toughest issues in the most difficult political environment of the year. It’s possible—and maybe even likely—that they’ll fare worse than Boehner.
So the John Boehner Atonement Theory I’ve been mocking every chance I get is wrong in two respects. First, the man hasn’t sacrificed a damn thing; he gets to spend a year at his Florida golf resort condo before becoming one of the richest lobbyists ever. Second, he didn’t buy his party much of anything other than a brief respite from madness.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 29, 2015
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“Time For A Second Crusade”: A Fresh Revolt Against That Other Godless RINO Devil-Figure, Mitch McConnell
In the world of objective reality where most of us live, John Boehner’s resignation seems to have bought off just enough of the Crazy to keep the federal government functioning until after Thanksgiving. But over in the fever swamps where the Washington Times is published, veteran reporter Ralph Hallow (who’s been around so long I almost wonder if Halloween was named after him) discerns a fresh revolt against that other godless RINO devil-figure, Mitch McConnell. Seems the Louisiana State GOP Chairman wants him gone.
With John Boehner now departing as House speaker, an influential Republican Party official is now seeking the ouster of another GOP leader who has frustrated conservatives: Senate Majority Leader Mitch McConnell.
“McConnell needs to resign!!” Louisiana GOP Chairman Roger Villere wrote in a Facebook posting….
Mr. Villere was stumped when asked whom he preferred to take over as leader of the Senate Republican majority.
“Honestly, I haven really thought of a replacement,” he said. “We are being so beat up by the base. I just was frustrated.”
Mr. Villere did say what specifically about Mr. McConnell makes his state’s rank-and-file GOP voters so dyspeptic that they want him out as leader — his failure to challenge executive overreach by President Obama or fight to repeal Obamacare and other unpopular measures.
“Mr. McConnell could have suspended consideration of confirmations for all presidential appointees, except for those who are essential to national security, until the president rescinded his unconstitutional executive action on amnesty,” Mr. Villere said.
“This would have been a constitutionally appropriate response to the overreach of the executive branch,” he said. “It would have transformed the political environment, greatly encouraged Republican donors and grass-roots activists, and positioned us to refuse to confirm replacements for any Supreme Court openings that might occur during the remainder of the Obama administration.”
Yeah, right. And it would have been like a slow-moving but long-lasting government shutdown, too.
Villere is the rare Lousiana Republican who is publicly backing Bobby Jindal’s presidential candidacy. As you may have noticed, Bobby the career pol has gone all Outsidery of late, as part of his gambit to offer Republican voters Trumpism Without Trump. His latest tag phrase is that Republicans need to “burn Washington down.” Such a project probably encompasses McConnell losing his gavel, I’d think.
So I’m guessing we’ll soon hear Jindal competing with Ted Cruz in demonizing McConnell on the theory that thunderbolts from Baton Rouge are the equivalent of the Texan’s agitation on the Senate floor. I’m sure ol’ Mitch is just terrified.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 28, 2015
“Don’t Cry For John Boehner”: An Old King Who Couldn’t Keep Up With The Palace Intrigue
Don’t cry for John Boehner, Washington.
Oh, no, the Ohioan doesn’t want to stay another day in the Capitol. The House speaker, who announced his resignation on Friday, had brought Pope Francis to address Congress. The soaring visit, a beautiful intermission for the city, represented the zenith of his career. His time as speaker has been a world of hurt – for President Barack Obama, too, who made a serious mistake in trying to work with Boehner early on.
Boehner clearly felt he could give no more. Besides, he’s 65, retirement age. Golf courses are out there. He’s always been more about politics than policy. Now he is like an old king who can’t keep up with palace intrigue. In a way, the pope, whom Boehner wept over, gave him spiritual permission to leave the fray.
For nearly five years, he was a strange bird flying through the halls, the House speaker who could not speak for his House Republican caucus. A rambunctious bunch, the right-wing element openly defied Boehner. He got no respect and as a result, accomplished next to nothing.
Not that Boehner’s a progressive – far from it – but he tried to keep order. The “conservative” rebels, a few degrees away on the ideological spectrum, were not having any sense or sensibility from their leader. In their latest great idea, they are flirting with shutting down the government of the United States over Planned Parenthood funding.
Look how well their government shutdown worked in 2013. The sequester, too, was a painful episode
The right-wing brigade also nurses fond hopes of getting rid of the Export-Import Bank, a perfectly good institution that more than pulls its weight.
The truth is, Boehner is a creature of the politics he practiced since the harsh days of Newt Gingrich’s speakership. He was an acolyte in that Republican Revolution of 1994, and this is what it’s come to: a houseful of angry white men in charge. More disarray is surely on the way.
Boehner, a jaundiced fellow, never took Obama’s outstretched hand. In the old school, when someone is elected president of the United States, it’s sporting to cut the guy some slack. No such luck. Over Obama’s presidency, Boehner refused to give ground on ending the Bush tax cuts, for starters. That set a hostile tone for other fiscal and budget issues.
Obama’s downfall with Boehner was believing he could charm him. That was never going to happen. Their was never any jovial Irish jokes between them, as there was between Republican President Ronald Reagan and Democratic Speaker Tip O’Neill.
Just yesterday, the speaker started speaking some truth; on the CBS News show “Face the Nation,” Boehner called the destructive right-wing faction “false prophets.” His tongue set free, he got religion. Perhaps he’s darkly hinting, “Be careful what you wish for.” If so, he might be right.
At last, a few words about “the barkeep’s son.” Boehner is too often summed up that way. What’s so great about that? Boehner himself says he’s just a regular guy – this is true. We in the press should not romanticize him. Let’s also remember he has cultural streaks of a Southern good ole boy, coming from the cusp of Ohio that borders the South.
Don’t cry for me, John Boehner, and I won’t cry for you.
By: Jamie Stiehm, U. S. Newsa and World Report, September 28, 2015
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