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Presumed Innocent? Representing Guantánamo Detainees

The New Republic, March 24, 2010 The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal […]

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Seven Years Later: Complacency

The New Republic, September 11, 2008 America has grown complacent, and how could it have done otherwise? For years, we have not felt the war our government insists remains a reality. We keenly feel two related wars, the ones in Iraq and Afghanistan. And the war on terror has certainly persisted as a legal reality, and in some sense also as a civic reality. […]

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State of Civil Unions: California Court Strikes Down Marriage Ban

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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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, […]

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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.

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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 […]

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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 […]

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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 […]

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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 […]

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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, […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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