Senate sets up veto fight with White House over
vote on defense

U.S. Senate Armed Services Committee Chairman Levin and ranking Republican McCain (Jason Reed/Reuters)
In what Marcy Wheeler calls the battle of two wrong sides, the Democratic wrong side lost today in a Senate vote.

The Senate soundly defeated a move to strip out controversial language requiring mandatory detention of some terror suspects, voting it down 61 to 37 and escalating a fight with the Obama administration over the future course of the war on terror.

The proposed amendment to the massive National Defense Authorization Act would require the FBI and other civilian law enforcement agencies to transfer al-Qaida suspects arrested overseas on charges of planning or carrying out a terror attack into military custody. It wouldn't apply to American citizens, but the change has drawn strong opposition from civil rights groups and the White House, which has promised to veto the defense bill if that language was included.

That proposed amendment was authored by Sen. Mark Udall (C-CO), who argued in an op-ed in the Washington Post yesterday that the bill without his amendment "gives the military too much responsibility for detainees."

The White House is so concerned about the changes that it has threatened to veto the defense authorization legislation if they are included. In light of that, I have offered an amendment aimed at averting a veto. My amendment would strike the detention provisions from the bill and require the Departments of Defense, Homeland Security, Justice and State as well as the director of national intelligence to issue a joint report detailing the gaps in our detention policy. This report would be due within 90 days and would allow Congress to draft detention legislation that meets our national security needs and keeps faith with the guiding principles of our Constitution.

As Marcy argues though, the heart of the problem with this defense authorization, with Udall's amendment, with the White House's position, is the preservation?the codification?of a unitary executive and "the fairly limitless claims the Executive Branch has, over the last decade (and especially since 2004) greatly expanded the application of the AUMF as a way to ignore laws on the books." This impending showdown between the Senate, including plenty of Democrats, and the White House is one the White House will probably win. This 37-61 vote shows that there isn't a two-thirds majority to override a veto.

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The Latest Roberts Court Atrocity

Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years-to-life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the 9th Circuit Court of Appeals freed Smith in 2006. Last month, as the culmination of a lengthy back-and-forth between the Court and 9CA, the higher court by a 6-3 majority reinstated the jury verdict, requiring Smith to return to prison although she is almost certainly innocent and does not pose any
threat to society.

Taken in isolation, the Court's order is by no means outrageous. Generally, appellate courts only permitted to assess legal errors by lower courts, not to second-guess how juries evaluate evidence. It should be noted, however, that the evolution of scientific evidence makes this case somewhat different, in that the appellate courts knew things that the jury could not have. Also, the Supreme Court's own actions are not exactly a model of judicial restraint, as Ginsburg noted in her dissent:
 

By taking up the case, one may ask, what does the Court achieve other
than to prolong Smith?s suffering and her separation from her family.
Is this Court?s intervention really necessary? Our routine practice
counsels no?

[?]

This Court, therefore, has no law clarifying role to play. Its summary
adjudication seems to me all the more untoward for these reasons: What
is now known about shaken baby syndrome (SBS) casts grave doubt on the
charge leveled against Smith; and uncontradicted evidence shows that
she poses no danger whatever to her family or anyone else in society.

In the abstract, one can understand the majority's response that the injustice in this case should be addressed by the governor granting clemency rather than by the appellate courts. But in practice, preventing federal appellate courts from acting is likely to lead to many cases to situations in which nobody is willing to be accountable and redress obvious injustices. Take, for example, the case Cameron Todd Willingham, who was executed based on forensic evidence that was known before his execution to be utterly worthless. The appellate courts didn't act, the commission charged with evaluating death sentences didn't act, and the governor not only didn't act but acted to suppress an inquiry. It's hard to see how requiring appellate
courts ignore what is effectively new evidence suggesting innocence serves the interests of either justice or the rule of law.

One final point about this case: as Dahlia Lithwick quietly mentioned in her profile of the Court's newest justice, the Court's five Republican appointees were joined by Elena Kagan. In this context, Kagan's vote wasn't just window dressing, as it prevented the Court from giving the case a full hearing. There's a lot to like in Kagan's first term on the Court, but for those of us who were skeptical of Kagan's appointment this is something to be concerned about.

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'You Guys Are Behind This': Eric Holder Says
Daily Caller Pushing For His Resignation

Attorney General Eric Holder on Tuesday told a reporter with the conservative news website The Daily Caller that the news organization was ginning up calls for him to resign over ATF's botched Operation Fast and Furious.

The reporter approached Holder after an event at the White House on the federal government's efforts to combat counterfeit goods.

"You guys need to... you guys need to stop this," TPM heard Holder tell the reporter. "There's not a damn thing happening, you guys are behind this."

The Daily Caller has been calling up offices on Capitol Hill to solicit the opinions of Republicans on whether Holder should resign over the operation -- which let guns flow across the border. While there's been no evidence that Holder knew about the flawed strategy of letting guns "walk" in order to learn where they would end up, some Republicans have called on him to resign.

The Daily Caller's first report on their canvass of Capitol Hill was about just four members of Congress who were on board with calling for Holder's resignation. When they got to eight, they declared it evidence his "tenure in the Obama administration may be coming to an end." Over time, the number has grown above 50. Holder still has the support of the White House and there's no indication his resignation is coming anytime soon.

As TPM has been reporting, problems with "gun walking" in ATF's Phoenix office predate the Obama administration.

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#YouthVotefail

Maybe it's a sign I'm getting old that I feel kind of sorry for Rick Perry when he screws up the national voting age. 18? 21? Meh, who's counting. [...]

Read The Full Article:
http://feedproxy.google.com/~r/Talking-Points-Memo/~3/HdHL_lcOavg/youthvotefail.p
hp

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Holder Bristles Over Resignation Question

Eric Holder to The Daily Caller on GOP calls for his resignation: "You guys need to stop this. There's not a damn thing happening. You guys are behind this."[...]

Read The Full Article:
http://feedproxy.google.com/~r/Talking-Points-Memo/~3/YwzdGlLkWBc/holder_bristles
_over_reporters_resignation_questio.php

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Newt Gingrich: Drug Test Everyone Before Giving
Them Federal Aid!

enlargeNewt Gingrich must be channeling Rick Scott. Here is his answer to a question about the "war on drugs", during an interview in Florida last Saturday morning.

Speaking of Ron Paul, at the last debate, he said that the war on drugs has been an utter failure. We've spent billions of dollars since President Nixon and we still have rising levels of drug use. Should we continue down the same path given the amount of money we've spent? How can we reform our approach?

I think that we need to consider taking more explicit steps to make it expensive to be a drug user. It could be through testing before you get any kind of federal aid. Unemployment compensation, food stamps, you name it.

It has always struck me that if you're serious about trying to stop drug use, then you need to find a way to have a fairly easy approach to it and you need to find a way to be pretty aggressive about insisting--I don't think actually locking up users is a very good thing. I think finding ways to sanction them and to give them medical help and to get them to detox is a more logical long-term policy.

Sometime in the next year we'll have a comprehensive proposal on drugs and it will be designed to say that we want to minimize drug use in America and we're very serious about it.

So the Republican frontrunner thinks people who apply for unemployment insurance should be drug-tested before they're eligible for a benefit they paid for? And their children should go hungry until the drug test has been administered? Really?

Let's see how that worked in Florida, up until a Federal judge said it was unconstitutional. Via Raw Story:

Republican Florida Gov. Rick Scott?s plan to test welfare recipients for drugs is costing the state money, despite his claims that the program would actually save tax dollars.

A WFTV investigation found that out of the 40 recipients tested by Department of Central Florida?s (DCF) region, only two resulted in positive results. And one of those tests is being appealed.

Under the rules of the program, the state must reimburse recipients who receive negative test results. The state paid about $1,140 for the 38 negative tests, while saving less than $240 a month by denying benefits over the two positive tests.

Keep in mind, this guy is supposed to be the conservative candidate, the small-government guy. Evidently that doesn't apply to people in need. Then he's the big -- very big -- government guy.

I really want to ask Republicans why they want a Presidential candidate who does not understand the Constitution or Bill of Rights. Clearly Newt Gingrich doesn't have any problem proposing "radical solutions" to the nation's non-existent problems of drug-addicted laid off people without regard to what the laws of our country are. And yet, these same conservatives are the ones who supposedly revere the Constitution and Bill of Rights. What gives Newt?

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Robert Reich: "The First Amendment is being stood
on its head"

A nice brief comment by Robert Reich and posted at The Nation. Cogent as always.



"The Supreme Court's rulings have created the public nuisance [of the Occupy Movement]."

We can trace decay of Rule of Law back to the Nixon pardon (h/t Glenn Greenwald for that observation). But one of the monster milestones was Bush v Gore (please click; nice analysis).

Our Billionaire-financed Supreme Court ? here till the Corp War (you think I jest? What do you think you're watching?) is over.

GP

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States Accept Federal Health Grants, Despite
Claiming That Health Law Is Unconstitutional

The Department of Health and Human Services (HHS) announced that it is awarding $220 million in grants to 13 states to help them create exchanges as required under the Affordable Care Act, bringing the number of states that are “making significant progress” in creating exchanges to 29, the agency’s press release claims. But interestingly, nine of the 13 states receiving funding have Republican governors, and seven are part of lawsuits claiming that the law is unconstitutional. Nebraska, which has put exchange implementation on hold until the Supreme Court upholds the law’s constitutionality, also accepted the ACA grant. So far, 13 states have passed exchange legislation and five governors “have taken some form of executive action to continue exchange planning after legislatures balked.”

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Newark Councilman Stays Overnight With Occupy
Newark To Show Solidarity

Newark Councilman Ras Baraka didn’t want to just voice his words of support for Occupy Newark — he wanted to be there himself. Baraka camped out at the site of the protests last night, engaging in dialogue with demonstrators. He told them they should develop both long-term and short-term demands: “People aren’t going to sit out here with no demands. They want to know why they’re here.” Baraka is the son of award-winning poet Amiri Baraka, who also joined the protests.

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Once Again Betraying Ignorance Of The
Constitution, Rick Perry Gets The Voting Age Wrong

You’ve got to feel a little bad for onetime GOP front runner Gov. Rick Perry — his frequent gaffes and embarrassing ignorance of basic facts have driven him to the bottom of primary polls. Perry has consistently demonstrated his complete lack of understanding of a document he claims to revere, the Constitution, with bogus claims that programs like Medicare, Social Security, and, well, everything else are somehow unconstitutional.

Today, Perry made another pretty stunning constitutional mistake in New Hampshire, telling a group of college students that the voting age is 21. The 26th Amendment made 18 the legal voting age across the country.

At Saint Anselm College in New Hampshire, Perry told the crowd, ?Those who are going to be over 21 on November 12th, I ask for your support” — eliciting a few chuckles from the crowd, according to the Washington Post. Perry also got the date of the election wrong — the general will be held Nov. 6, 2012, while the New Hampshire Republican primary, which brought Perry to the state, will take place on Jan. 10.

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