Appearance puzzler answered

Answer to today's puzzler, tucked into our lead story on the underrepresentation of minorities and women among persons invited to speak on Sunday morning talk shows:
The only woman among the top 10 Congressional repeat guests is Dianne Feinstein (right) of California.
Feinstein shares many characteristics with the others on the list -- and with the vast majority of all guests on these reputedly important television programs, as the study by Alex B. Mitchell, described in the above post, details. (credit for 2008 photo of Feinstein appearing on CBS' "Face the Nation")
Feinstein is a U.S. Senator rather than a Representative. She is white, and she has held office since 1992, well over the 6-year point that Mitchell uses to mark seniority. A few characteristics set her apart, however: she is a Democrat, and a woman.

Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

... and counting ...

(Occasional sobering thoughts.) U.S. Senator Dianne Feinstein (D-Calif.) (below left) said this yesterday about the ongoing NATO role in Afghanistan:

'My view is that the mission has to be very clear. I believe it is not now. ... I don’t believe we can build a democratic state in Afghanistan. I believe it will remain a tribal entity.'

Not encouraging words from the Chair of the Senate Select Committee on Intelligence. But not much of a surprise, either, given recent news from that Central Asian country:

► An airstrike 10 days ago is said to have killed as many as 90 persons near Kunduz, and though it is hard to say how many were "militants," it is known that among the injured was a 10-year-old boy. NATO is investigating the decision to strike of German troops, who place the death toll closer to 50. In Berlin yesterday, Chancellor Angela Merkel (below right) promised "full clarification," "and expressed regret for possible civilian casualties, stating as parliament renewed debate regarding Germany's ongoing involvement:

'Every innocent person who is killed in Afghanistan is one too many.'

► Just this weekend, Afghanistan endured "a wave of bombings, ambushes and killings" that left 39 civilians and 5 U.S. troops dead.

► The passage of 3 weeks since voting for President has yet to yield a winner, and tarnishing indications that incumbent, Hamid Karzai, will be the likely winner is a "chaotic count ... marred by allegations of widespread irregularities including phantom polling stations and stuffed ballot boxes."
As for Iraq, scattered violence persists even as the United States continues its plan to withdraw combat troops before next summer comes to an end.

With all this in mind, here's the casualty count since our post 6 weeks ago:

► Iraq Body Count reports that between 93,081 and 101,578 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 562 and 572 deaths in the last 6 weeks. According to the U.S. Defense Department, 4,343 American servicemembers have been killed in Iraq, representing 15 servicemember deaths in the last 6 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

► Respecting the conflict in Afghanistan, military casualties in Afghanistan stand at 830 Americans and 55 other coalition servicemembers. That's an increase of 67 and 37, respectively, in the last 6 weeks, and a total servicemember casualty count of 1,384.

It goes where it goes

It goes where it goes.
That's the phrase glimpsed in the tea leaves after Thursday's release of Office of Legal Counsel memoranda that professed to give legal justification for waterboarding and other coercive interrogation measures.
IntLawGrrl Naomi Norberg opined Sunday that President Barack Obama, by announcing that the United States would not prosecute CIA operatives who implemented policies the memos condoned, okayed prosecutions in countries outside the United States. Surely she wrote with tongue in cheek, given reports that Obama is "hoping that" the possibility that Spain might launch a criminal investigation of 6 Bush Administration lawyers "will go away." (Prior post.) (The decision now is in the court of Judge Baltasar Garzón.) Obama's emphasis from the outset -- with which this IntLawGrrl heartily agrees -- has been a forward look toward dismantling post-9/11 abuses.
At the same time, it must be noted that Obama has refrained from any public condemnation of proceedings in Spain, or elsewhere for that matter.
Also to be noted:
Obama gave a U.S. prosecutorial pass only to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice," to "men and women of our intelligence community." Glaring is the omission of any reference to the lawyers who gave that advice. Presumably, they remain exposed. So too any official who acted in bad faith or without bothering to secure cover from what I have called (p. 2126) "legalist" -- as opposed to legal -- advice. Reinforcing that presumption is this snippet from Sunday's Face the Nation interview with Obama adviser David Axelrod:

Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted.
If people acted outside the law, that's a different issue.

As to those people, it goes where it goes.
It might go to an investigatory body, and not one as far away as Spain:
► A Senate intelligence panel is continuing its examination of CIA's post-9/11 behavior, and its chair, Dianne Feinstein, doesn't want to rule out prosecutions before that study is completed, 6-8 months from now.
► The New York Times wants Congress to impeach Jay Bybee, the erstwhile OLC head who's now a judge on the U.S. Court of Appeals for the 9th Circuit.
► Some are working to establish a commission of inquiry along the lines of the 9/11 Commission.
► Others are calling for a special prosecutor.
Both of these 2 latter proposals make more sense now than they did before Obama's action on Thursday. Any investigator knows that the way to move toward the truth, the way to make a case against higher-ups, is to immunize lower-level hirelings.
In short, it seems we have not heard the last on calls for accountability. Not even within the United States.
Investigation, it goes where it goes.

And in other nominations news ...

President Barack Obama's nomination (prior post) of Dawn Johnsen (left) to become the Assistant Attorney General in charge of the Office of Legal Counsel, U.S. Department of Justice, is now before the U.S. Senate following a favorable vote last week in the Judiciary Committee. But the tally was close -- 11 to 7 -- and SCOTUSblog predicts "a lengthy and contentious floor debate" in the full Senate. Issues Republicans have raised about this Indiana Law professor, an IntLawGrrls' guest/alumna? According to SCOTUSblog:
►"[S]he has served as legal counsel for NARAL, a pro-choice reproductive rights political group," and
►"She has strongly criticized the Bush administration’s OLC legal memorandums and positions on executive power," going so far "[d]uring her nomination hearing" as to "explicitly cal[l] waterboarding a method of torture when asked by Sen. Dianne Feinstein (D-Calif.)."
'Nuff said.
Meanwhile, another Obama nominee about whom we've posted, former Harvard Law Dean Elena Kagan, was presented sworn to the Supreme Court yesterday, having been sworn in as Solicitor General of the United States, the government's chief advocate before the Court, on Friday. Kagan (left) is the 1st woman to hold her post -- as would be Johnsen if confirmed.

'Nuff said

More recently, President Bush vetoed a law that would require the CIA and all the intelligence services to abide by the same rules on torture as contained in the U.S. Army Field Manual.
The president says the rules are too restrictive, implying that the use of some forms of torture just could help avoid another Sept. 11.
But all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.
Our forefathers prohibited 'cruel and unusual punishment' because that was how tyrants and despots ruled in the 1700s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.
The same rationale is used to justify eavesdropping on U.S. citizens without a warrant. The president has made clear that the failure of the Congress to pass this authority could jeopardize our security. Instead of trying to negotiate a compromise with Congress that would meet both our intelligence and privacy concerns, it is easier to threaten with fear.

-- Leon Panetta, whom President-Elect Barack Obama's just nominated to be the next Director of the Central Intelligence Agency. The passage is from Panetta's March 2008 op-ed in The Herald of Monterey County, California. The title of the op-ed? Americans reject fear tactics. Yet Panetta may have a rocky road to confirmation. The best way to characterized the view of some Senate Democrats, among them the new chair of the Select Committee on Intelligence, Panetta's fellow Californian Dianne Feinstein? Reportedly, not thrilled with the choice.

(credit for New York Observer photo) (hat tip to Jamil Dakwar)

California marriage equality back in Court

'I think people are beginning to look at it differently, I know it’s happened for me. I started out not supporting it. The longer I’ve lived, the more I’ve seen the happiness of people, the stability that these commitments bring to a life. Many adopted children who would have ended up in foster care now have good solid homes and are brought up learning the difference between right and wrong. It’s a very positive thing.'

-- U.S. Sen. Dianne Feinstein (D-Cal.), quoted yesterday in Maureen Dowd's column. Feinstein (above right) was among the precious few high-ranking politicians who cut a television ad against Proposition 8, the ballot initiative that aimed to limit marriage in California to opposite-sex couples. (Prior posts here and here.)
Prop 8 passed by a margin of 52.1% to 47.9%. But it remains to be seen whether it will take effect. The California Supreme Court (below) has agreed by this order to hear petitions contending that the simple-majority-rules initiative process cannot be used to take a fundamental right like marriage away from a group that the Court has declared a suspect class -- as the Court did for same-sex couples in In re Marriage Cases (May 2008) (prior post). Invoking the Equal Protection Clause, petitioners argue that the only way to effect such a deprivation is by the state's more cumbersome, super-majority-needed "revision" process.
Throughout the course of this new round of litigation, filings by litigants and the many amici curiae may be found here.

Waterboarding roundup

No need to repeat prior thoughts (here and here) on the nomination of Michael B. Mukasey to be Attorney General; those thoughts still hold. But as the Mukasey nomination heads for the full Senate floor -- having cleared committee thanks to the tipping factor of "aye" votes cast by Senators Dianne Feinstein (D-Cal.) and Charles Schumer (D-N.Y.) -- it seems a good time to sample others' comments on the nomination and on waterboarding, the interrogation tactic that the nominee's declined to call illegal.
Check out:
"Self-Inflicted Wounds," an op-ed by former Bush and Clinton Administration officials Alberto Mora and John Shattuck
"Poll results: Waterboarding is torture"
"French Journalist Henri Alleg Describes His Torture Being Waterboarded by French Forces During Algerian War" (video of that televised interview here)
Post scriptum: Realize that the title of this post may make one wince. Yet it's apt, and that in itself is worth thinking about.

On June 22, ....

... 1933, U.S. Sen. Dianne Feinstein (D-Cal.) (right) was born in San Francisco, where she also served as mayor from 1978 to 1988.
... 1940, Nazi Germany compelled France to sign an armistice 8 days after overrunning Paris. On the same day 1 year later, Germany further expanded World War II when it invaded the Soviet Union.
... 1989, in Gbadolite, Zaire, União Nacional para a Independência Total de Angola, the rebel group known by its acroynym, UNITA, agreed to a ceasefire in its 14-year-old conflict against Movimento Popular de Libertação de Angola, Angola's Soviet-backed government.