As we head into a new year and a new administration, perhaps the biggest legal question of 2008, and possibly of 2009 as well, is whether the current Bush administration is guilty of war crimes. These crimes focus on two controversial aspects - that of torture and that of the legality of the Iraq War. With Cheney coming out in an interview and admitting that he was involved in authorizing the use of waterboarding on terrorist suspects the debate has, once again come to the fore.

In the video above the excellent Rachael Maddow of MSNBC explores the arguments. I'll leave it for you to decide but, ultimately, we should all ask ourselves 'what kind of country do we want to live in?" Can we ignore this? Is it enough to set up a 911-type commission that will see no action taken against individuals, as some have suggested? Would we ignore it if this was done by another country? What do you think an Obama administration should do?

Labels: Cheney, Iraq War, Torture, War Crimes, Waterboarding

Undoubtedly, one of the most interesting legal cases currently before us is the Blagojevich case. Arrested on December 9th, the Illinois Governor has been accused of trying to "sell" Barack Obama's vacated State Senate seat. His arrest, by Chicago U.S. attorney Patrick Fitzgerald, was based on a number of taped conversations made by investigators looking into a number of alleged suspicions of corrupt dealings involving the Governor.

The problem for the prosecutors is that there is very little evidence of any wrong-doing. The Governor hasn't actually received any benefit from the alleged senate seat deal. All they have are the taped conversations and now questions are being raised as to whether this is enough to prosecute the Governor with any criminal act - "is it a crime, or is it just talk?", David Johnston asks in his New York Times article

The arguments are well set out in the article so I won't repeat them here - though no-one seems to have mentioned the idea of bringing a charge of 'conspiracy to sell a public office'. The big question in my mind is what is it that the American public - the voters - want from their politicians? There is no doubt that the last eight years have shown precisely what effects the lack of oversight on our elected representatives can have on the country. If you think Blagojevich is bad then you want to read "The Tyranny of Oil" by Antonia Juhasz (2008, Harper Collins).

Ultimately, the recent election has clearly shown that the American people are hungry for a different kind of politics. It is up to all of us to insist on a level of decency and honesty from our politicians that hasn't been there for a long time. The most important element in making sure that this happens is by having an open and transparent government - at all levels - and I hope that the Obama administration gives as much attention to achieving that as is necessary. It is the foundation of democracy and without that all else is doomed.

Labels: Blagojevich, Illinois governor, Obama Senate seat

I am sometimes shocked at the complacency of some American citizens when it comes to their civil liberties. One AT&T subscriber, when I gave him the "you do realise" speech about his provider's participation (I am more inclined to use the word 'complicity'), in the Bush administration's warrantless wiretapping program, he was not in the slightest alarmed and simply said "well, they all do that don't they"? Well - no they don't actually. Qwest refused to co-operate, which is why I have been a Qwest customer all these years. I always thought it should be a key advertising play for them, but no doubt they would have been accused of being "un-patriotic" - oh the irony! The image above is of AT&T's 'secret room', revealed by an ex-employee who installed the equipment, which fed domestic customer's calls and emails directly to the NSA where everything was recorded.

The Democratic support in July which granted retroactive immunity to the telecommunications companies participating in this potentially illegal wiretapping was to many of us unfathomable. Given the neo-conservative ideology driving this administration it was, to a lot of people, a frightening step towards an Orwellian nightmare vision of a '1984' 'Big Brother' government. And for companies like At&T, BellSouth, and Verizon to act as enablers to an administration who had already proved itself untrustworthy by that time (May 2006) is a shameful betrayal of their customers.

However, that retroactive immunity is about to be challenged in the courts according to an article in the Washington Post today - see here. The Foreign Intelligence Surveillance Act, the act which was thusly amended in July, is being challenged by The Electronic Frontier Foundation, a watch-dog group based in San Francisco. U.S. District Judge Vaughn Walker is to look at privacy case issues bought by customers of the telecommunications companies involved and at "whether there is any precedent to the government's immunity provision". I shall be watching this one with a keen interest - as should every citizen of this country.

Labels: ATT, Qwest, Verizon, warrantless wiretapping

NBC News yesterday confirmed that former U.S. attorney Eric Holder has accepted the offer of the Attorney Generalship in Barak Obama's forthcoming administration. The appointment would need the support of the Senate in order to confirm Holder but early indications are that there would be no particular problems in that regard.

Holder was formerly Deputy Attorney General in Bill Clinton's administration and his appointment to the No.1 job in the justice department would make him America's first black Attorney General. Holder is also a former judge, is widely respected by the legal profession, and is seen as a good choice in being able to restore the reputation of the Justice Department after the severe bashing it has received under the Bush administration. A key supporter of Obama, Holder seems to be generally accepted as a good pick for the job.

Labels: Attorney General, Eric Holder, Justice Department, Obama

There is no doubt that Guantanamo Bay has proved to be a very black mark against the perceived sense of America's fairness and justice. Even Bush has been trying to find ways of the closing it down but has been unable to resolve the complications involved in doing so. The problems with dealing with terrorists, or at least suspected terrorists, who have been captured in battle are many. The Republicans don't want to see them set foot on U.S. soil because under the rights protected under the Constitution they argue that evidence would have to be presented in open court obtained through informers and clandestine operations, both of which would end up being compromised.

On the other hand the military hearings under Bush have been fatally flawed because of evidence procedures and secrecy, and several expert military prosecutors resigning because of it. There is also the problem of presenting evidence that has been gained under torture. No court, except maybe the very worse of the 'kangaroo' kind would accept such evidence. Some are arguing for a new hybrid system of military and civilian commissions but this has already met with opposition from the American Civil Liberties Union who see nothing wrong with the legal system America already has.

Although many of the detainees could probably be released without trial another problem is that their home countries refuse to take them back. Yemen is a case in point. It boils down to the status of the detainees when they are released - they are either guilty or they are innocent. The Yemenis argue that they should either be tried in the U.S. courts or set free, and so negotiations have gotten nowhere. The whole situation is one big mess. I think that few would disagree that 'Gitmo' has to close, but Obama has been left with very few options when it comes to how to achieve it. Ultimately, if America is to regain her credibility in the world, she must live by the rule of law as set out in the Constitution. If America is seen to take the low road in dealing with terrorist suspects then the terrorists truly have won.

Labels: American Civil Liberties Union, courts, Gitmo, Guantanamo Bay, military, terrorists

America has decided - Barak Obama will be the next President of the United states of America - whether you like it or not. For those McCain supporters hoping to see some of the more liberal justices replaced with judges more sympathetic to causes such as the overturning of Roe v Wade are going to be disappointed. However, even if he is an 'expert prosecutor' when it comes to winning elections, Obama is unlikely to be able to replace any of the conservative judges currently sitting on the Supreme Court during his term, or terms of office.

At the moment the bench is split pretty evenly with 4 conservative judges and 4 more liberal judges. Ironically, it is the liberal judges that are more likely to come up for replacement in an Obama term because of their age. For example, Justice Ruth Bader Ginsberg is 75, and Justice John Paul Stevens is 88! In contrast, most of the conservative judges are relatively young and are unlikely to come up for retirement within the lifetime of an Obama Presidency anyway.

Certianly, Barak Obama has made it quite clear that he would like to see more judges appointed who have the empathy of experience when it comes to the modern day problems of teenage moms, people who are disabled, or in poverty, or gay or African-American, and he also wants to see more justices with a view on constitutional limits on presidential power that are more traditional than has been the case under the Bush presidency. However, Obama is likley to be replacing like with like and therefore maintaining the statas quo in Supreme Court rather than making any significant change.

Ironically, McCain would have had a better chance of re-defining the Supreme Court in the conservative mold than Obama will a liberal one. If there are conservatives out there who now fear that an Obama-influenced Supreme Court will lead to wider access to abortions, gay marriages in every state, and the business community stifled with liability lawsuits they can, perhaps, relax a little. That said, Constitutional matters, after the ravages of the last eight years, will need some serious addressing if American democracy is to be protected from future incursions.

Labels: justices, Obama, Presidency, Supreme Court