The New Republic, May 20, 2008 “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage.” He […]
Author Archives | Benjamin Wittes
Unusual Nonsense: Supreme Court’s Decision about “Cruel and Unusual Punishment”
The New Republic, April 28. 2008 The Supreme Court recently gave the country an object lesson in the absurdity of the Eighth Amendment – at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states […]
John Yoo Interrogation Memo
The New Republic, April 8, 2008 The disclosure of the former Bush administration lawyer John Yoo’s “torture memo” this week was, in most senses, an exercise less in news than in archaeology. The public has long known the memo existed. And it has also known, in broad strokes, what it says: that military interrogators aren’t […]
What Happens If the Supreme Court Recognizes Individual Gun Rights? Not Much.
The New Republic, March 21, 2008 One thing seemed clear from Tuesday’s Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court’s conservatives–save Justice Clarence Thomas, who maintained his customary silence at arguments–evinced little […]
Trial by Fire: How Military Commissions Work and Why They Fail
The New Republic, February 14, 2008 At long last, one way or another we’re about to learn a great deal about military commissions. The charges prosecutors filed Monday against Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot proceed credibly to trial in anything less than a viable court system. The evidentiary questions […]
Mukasey Has the Capacity to Be a Great Attorney General, But Not the Time
The New Republic, January 31, 2008 Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law. At the committee hearing, he declared the question hypothetical, since the CIA no longer uses the tactic. And he declared as […]
Gun Shy: The Justice Department Weighs in on the Second Amendment
The New Republic, January 25, 2008 Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide. In May 2001, then-Attorney General John Ashcroft wrote a letter to the National Rifle Association stating “unequivocally my view that the text and the original intent of the Second Amendment clearly protect the […]
The Death Clock: Don’t Count Out the Death Penalty Yet
The New Republic, January 7, 2008 These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment–becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual […]
Detention Retention: Are Guantanamo Detainees All Innocent?
The New Republic, December 7, 2007 Seth Waxman, arguing on behalf of 37 detainees at Guantanamo Bay, Cuba, told the Supreme Court Wednesday that each of these men “maintains, as this Court explained [in an earlier case] that he is quote ‘innocent of all wrongdoing.’” Waxman, a former solicitor general, is the kind of oral […]
A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights
Coauthored with Mark Gitenstein, Brookings Institution, November 15, 2007 Six years after the September 11 attacks, the United States still lacks a stable, legislatively established policy for detaining suspected foreign fighters captured in the war on terrorism. American detention policy has eroded this country’s international prestige and public image, embroiled its military in continuous litigation, […]
The Mukasey Ultimatum
The New Republic, October 27. 2009 At his recent Judiciary Committee confirmation hearing, would-be attorney general Michael Mukasey sounded at times positively Alberto Gonzales-like. Pressed on whether waterboarding, an interrogation technique in which interrogators strap the subject to a plank and pour water over his face to create the sensation of drowning, counts as torture, […]
The Democrats and Bush Don’t Really Disagree Much on FISA
The New Republic, October 15, 2007 For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week’s introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren’t very far apart.
Why I’m Not Looking Forward to the New Supreme Court Term
The New Republic, October 1, 2007 It’s the first Monday in October, the day the Supreme Court begins its term, and I’m supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the […]
Mukasey is the Right Attorney General—Seven Years Too Late
The New Republic, September 18, 2007 There is one big problem with President Bush’s nomination of retired Federal District Judge Michael Mukasey to be Attorney General of the United States: It comes seven years too late. Mukasey has been an excellent judge–independent, tough, and fair-minded. His handling of the case of Jose Padilla, when the […]
The Law On Wiretapping
The New Republic, August 18, 2007 The New York Times calls it an ‘unnecessary and dangerous expansion of President Bush’s powers’ and warns that it will ‘allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.’ My former colleagues at The Washington Post call it […]
Congress, The Attorney General and The Foreign Intelligence Surveillance Act
The New Republic, August 6, 2007 One of the problems with having a dissembling attorney general is that it becomes difficult for his administration to move agenda items that rely to any degree on his credibility–even when they might have merit. In his recent testimony before the Senate Judiciary Committee, Alberto Gonzales provoked bipartisan rage […]
The Supreme Court’s Looming Legitimacy Crisis
The New Republic, June 25, 2007 Real Clear Politics calculates President Bush’s average approval rating at 31 percent. Congress comes in even lower, at 25. But not every government institution is polling badly. In a recent Gallup poll, 51 percent of Americans approved of the performance of the Supreme Court of the United States. Yes, […]
Terrorism, the Military, and the Courts
Policy Review – Hoover Institution, June 1, 2007 The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they […]
The Conservative Legal Establishment’s Strange Youth Culture
The New Republic, May 28, 2007 When I knew Monica Goodling, a few years ago, she was the Department of Justice public affairs staffer with whom I preferred to deal. In her late twenties, she had come over to the department from the Republican National Committee; she was smart, capable, and conversant enough in the […]
James Comey’s Damning Testimony
The New Republic, May 17. 2007 The scene former Deputy Attorney General James Comey described to the Senate Judiciary Committee on Tuesday was the stuff of Hollywood movies: a frantic race between White House and Justice Department officials to the hospital room of John Ashcroft; a dramatic showdown at the gravely ill man’s bedside, in […]
Alberto Gonzales Digs Himself a Deeper Hole
The New Republic, May 14, 2007 I want to ask how the U.S. attorney termination list came to be, House Judiciary Committee Chairman John Conyers said to Attorney General Alberto Gonzales at the outset of Thursday’s oversight hearing. ‘Who suggested putting most of these U.S. attorneys on the list and why?’ It’s a perfectly reasonable […]
The Supreme Court’s Shift on Abortion is Not What You Think
The New Republic, April 30, 2007 The Supreme Court’s recent partial-birth abortion decision solidifies a big shift in abortion law–but probably not for the reason you think. The most important language in the opinion does not substantively alter the scope of the right to choose, nor does it expand the right to life. It is […]
The Supreme Court’s EPA Ruling Isn’t As Important As You Think
The New Republic, April 16, 2007 “It would be hard,’ The New York Times declared, ‘to overstate the importance of [the April 2] ruling by the Supreme Court that the federal government has the authority to regulate the carbon dioxide and other greenhouse gases produced by motor vehicles.” Not that the Times wasn’t going to […]
Who Should Replace Alberto Gonzales?
The New Republic, April 2, 2007 Alberto Gonzales is toast. He apparently doesn’t realize this. President Bush doesn’t either. But Gonzales’ tenure as attorney general—or, at least, as an effective attorney general—is already over. Every day he fails to resign he disserves Bush, the Justice Department, and the public at large. Every day Bush lets […]
Ditch the Second Amendment
The New Republic, March 19, 2007 The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.’s ultra-strict gun-control law of storming “blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety.” My former colleagues at […]
José Padilla: Would-Be Terrorist or White House Victim?
The New Republic, March 6, 2007 “We will probably never know if [José] Padilla was a would-be terrorist,” editorialized The New York Times last week. His “trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping […]
The Courts Can’t Fix Guantanamo
The New Republic, February 22, 2007 Amnesty International calls it “shocking” and insists it “must be challenged.” Human Rights First complains that it “runs counter to one of the most important checks on unbridled executive power enshrined in the U.S. Constitution: the right to challenge imprisonment in a full and fair proceeding.” So, at the […]
Confirmation Wars: Preserving Independent Courts in Angry Times
Just in time for the first Supreme Court confirmation of the Obama administration, one of America’s most insightful legal commentators updates the critically acclaimed Confirmation Wars: Preserving Independent Courts in Angry Times to place the nomination of Judge Sonia Sotomayor in the context of the changing nature of judicial nominations by recent presidents.
Marital Differences
The Atlantic Magazine, May 2006 Will this year’s midterm elections feature a new raft of state ballot initiatives to ban same-sex marriage? Definitely. Voters in eighteen states have already passed such bans, and the ballot initiatives have proven to be a major base-mobilizer for conservatives—so this year, there will be more. At least six states—Alabama, […]
Justice Delayed
The Atlantic Magazine, March 2006 Whatever happened to Zacarias Moussaoui? Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, […]
Whose Court Is It Really?
The Atlantic Magazine, January/February 2006 What are the early indications of what the Roberts Court will be like? It’s not the Roberts Court—at least not yet. It’s still the Stevens Court. Excuse me? For a few weeks this past summer, between the death of Chief Justice William H. Rehnquist and the confirmation of John G. […]
What Is “Cruel and Unusual”?
Policy Review – Hoover Institution, December 1, 2005 The eighth amendment is a jurisprudential train wreck. Its proudly humane language banning “cruel and unusual punishments” may remain among the Bill of Rights’ most famous sound bites, but nobody today has the faintest clue what it means. The reason is as simple as it is sad: […]
The Executioner’s Swan Song?
The Atlantic Magazine, October 2005 Is it just my imagination, or has there been a palpable change recently in the Supreme Court’s approach to death-penalty cases? The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row. They created […]
Without Precedent
The Atlantic Magazine, September 2005 Conservatives complain that the Supreme Court is too liberal. Liberals complain that it’s too conservative. Both charges are inaccurate: in reality the Court is a careful political actor that arguably represents the center of gravity of American politics better than most politicians do. The real problem is not the Supreme […]
The Hapless Toad
The Atlantic Magazine, May 2005 Liberals talk as if the world will end if President Bush gets to name some new Supreme Court justices. How much of the danger is hype, and how much of it is real? It’s mostly hype. In general liberals fear conservative judges far too much. In almost all areas, in […]
Checks, Balances, and Wartime Detainees
Policy Review – Hoover Institution, April 1, 2005 The day the Supreme Court handed down what have collectively become known as the enemy combatant cases — June 28, 2004 — was both widely anticipated and widely received as a legal moment of truth for the Bush administration’s war on terrorism. The stakes could not have […]
Confirmation Class
The Atlantic Magazine, April 2005 The Senate will soon need to gear up to hold confirmation proceedings for a new chief justice of the United States. Any advice for the Judiciary Committee? Oh, just skip them. Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the […]
Letting Go of Roe
The Atlantic Magazine, January / February 2005 Are we about to suffer through another horrible Supreme Court nomination dominated by abortion politics? Bet on it. With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush’s second term looms over American politics. The script for this—and every—Republican high-court […]
Leaks and the Law
The Atlantic Magazine, December 2004 Who is Patrick J. Fitzgerald, and why is the press so upset with him? Patrick J. Fitzgerald is the United States attorney for the Northern District of Illinois, based in Chicago. He was widely regarded as an excellent prosecutor and a fine man. Late last year, however, Deputy Attorney General […]
Supreme Irony
The Atlantic Magazine, November 2004 According to a New York Times editorial, George Bush says that if re-elected, he would “try to finish packing the [Supreme] Court against Roe v. Wade, the decision validating abortion rights, which four members say they want to strike down.” If voters elect a Democratic President, the Republican candidate predicts, […]
Suspended Sentencing
The Atlantic Magazine, October 26, 2004 When Dwight W. Watson first came before U.S. District Judge Thomas Penfield Jackson for sentencing, on June 23, the judge gave him six years in prison. Watson was the North Carolina tobacco farmer who paralyzed a section of Washington, D.C., for two days last year by driving a tractor […]
Enemy Americans
The Atlantic Magazine, July / August 2004 June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft’s career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago’s O’Hare International Airport, and Ashcroft happened to be in Moscow when […]
Starr: A Reassesment
How is Kenneth Starr’s extraordinary term as independent counsel to be understood? Was he a partisan warrior out to get the Clintons, or a saviour of the Republic? An unstoppable menace, an unethical lawyer, or a sex-obsessed Puritan striving to enforce a right-wing social morality? This volume is designed to offer an evaluation and critique […]
Benjamin Wittes 