Right out of the box. If the answer is in any way evasive, that should be the end of the hearing. (Note: The Kagan hearing is over. Make this a hypothetical about questions that need to be asked.)
Glenn Greenwald writes today about the al-Awlaki case where the administration is claiming it has the right to deny a US citizen the right to retain legal services to enjoin the government from taking a irreversible, harmful action.
Yes this is narrowly about terrorism. Its significance though, stems from the breadth of the concept that one person is able to decide in secret what your Constitutional rights are, without recourse. Very bad. End of the American Experiment bad.
I used to think this is where we're heading and there was some time left, but I guess we're already there. If the ACLU gains standing (or audience, or permission, it's murky) here, this will almost certainly come to the Supreme Court. We cannot afford another Justice on the Court that believes in unfettered executive power.
This is more of a quick hit/rant, but the issues are existential, imho, and need to be discussed. It has Presidential ramifications as well.
The requisite James Madison quote:
Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.
A major legal challenge to one of the Obama administration's most radical assertions of executive power began this morning in a federal courthouse in Washington, DC. Early last month, the ACLU and the Center for Constitutional Rights were retained by Nasser al-Awlaki, the father of Obama assassination target (and U.S. citizen) Anwar al-Awlaki, to seek a federal court order restraining the Obama administration from killing his son without due process of law. But then, a significant and extraordinary problem arose: regulations promulgated several years ago by the Treasury Department prohibit U.S. persons from engaging in any transactions with individuals labeled by the Government as a "Specially Designated Global Terrorist," and those regulations specifically bar lawyers from providing legal services to such individuals without a special "license" from the Treasury Department specifically allowing such representation.
The rest of the column describes the ACLU's actions and challenges in more detail. But there are a couple of things I'd like to highlight that show pernicious intent.
- Treasury only labeled al-Awlaki a "Specially Designated Global Terrorist" after his father filed suit, one would assume to conform with the specific labeling requirements of the law that require permission.
- Treasury simply ignored the good-faith request for permission to represent al-Awlaki.
I was going to try to discuss this but it seems so blatant a subversion that I couldn't really identify any issues. How can the government require a lawyer to ask permission to represent someone (and by extension require someone to ask permission to be represented)? Isn't that prima facie, non-hypothetical authoritarianism?
Due process (the concept, not any situational application), of which legal representation is one aspect, is the heart of the foundational justice we believe in as Americans. This process that the ACLU has uncovered and that Greenwald describes shreds any notion that our DC establishment believe that anymore. To paraphrase Madison, perpetual war and US Constitutional democracy are incompatible. It's showing.
Kagan needs to state her clear position on this. So does Obama for that matter (or maybe he has with this case). This permitting process for legal representation is way over the line. Beyond Bush, over the line. Primary, over the line.
We can't afford to have people in power in DC that believe that due process is optional. We just can't.
Update: Thanks to burrow owl, the ACLU brief on this is here (.pdf)