There seems to be a much livelier spirit among United Kingdom parliamentarians and a willingess to swing the shovel now and again in matters of principle. Civil liberties-- and the frequent nervousness of the polity on growing infringements of them by newer and newer legislation -- is one of those matters of principle.
On this side of the pond we can only hope that it is contagious.
It is interesting that this opinion should be expressed now. The new leader and prime minister has yet to be installed, MP’s seem to be just as perkily vigilant on the subject of civil liberties as they were during recent but earlier times when other proposed intrusions on basic freedoms were being championed by Prime Minister Blair --a powerful, committed and persuasive Prime Minister acting when the memory of 7/7 was much fresher -- failed to sell them in the face of revolt within his own caucus, when he could not convince backbenchers of their merit.
Mr. Meacher, then, seems to be drawing the line early.
The question is, is be being necessarily pre-emptive of a substantial threat to the current, apparently balanced civil liberties regime in the United Kingdom or is –necessarily or not—only being pre-emptive of Mr. Brown
Wednesday, June 20, 2007
Wednesday, June 13, 2007
TALKING TO AMERICANS, PART IV
AL-MARRI AND LITHWICK SPEAK: CONGRESS LISTEN
Yesterday, the American press reported on the release of a decision in an American federal appellate court of a decision that found that the US government could not treat its own nationals, arrested within its borders within itw own militarized legal processes for terrorists. The decision may well be overturned but its value lies in the close analysis it performs of the problem and its implications for the existing, well -besieged system. The decision was called "Al-Marri." Dhalia Lithwick is a well recognized and insightful American popular legal writer who publishes in the on-line Magazine "Slate.' Lithwick managed to tease out principles and support the Al-Marri decision. I think both she and the Court hit on yet another message-- the responsibility of the US Congress to give the "sober thought" needed -now-- for reform
Thank you for this. Putting the decision in perspective for the rest of us can be as close to important as what the majority in the decision, itself, attempts to do. Rightly or wrongly, deftly or not, this Court has given Americans and others a frame of view that falls within the better analytical and within the best educational traditions of the judicial role.
But you identify, of course, another important dimension to this. You put it as the need for “...getting down to the business of crafting a legal regime based on clean rules...” In this respect perhaps al-Marri reaches beyond its individual analysis to lend lessons to others in the governing branches, situate elsewhere.
By definition, this “getting down,” cannot be left to Courts alone. This Executive, at least, is frozen. You observe of terrorist acts, “For almost six years .. nothing has happened...[in the face of this] insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month...”
The Courts and the legal process, regardless of the breadth and depth of interventions and regardless of the weight of the resources invested in any individual litigation, are simply, practically, precluded from realistic access to the pool of data in the experience of government operations since 9/11. As much as they can stand as the protectors of both principles and individuals, the Courts can only be a well less than ideal mechanism for broad based legal policy review– even in the land that invented legal pragmatism.
So, if the Courts are hampered by their own limitations of process and resources and the Executive is frozen in accepting any need for reform, this policy role in the interim can only play out as a Congressional one– whatever that arm’s own limitations might be.
That, I suggest is the further lesson of al Marri– at least until there is the opportunity for review and thought by a new Executive – the only resort left for sober debate and tedious legal (or policy-) head-scratching can be that of Congress.
One hopes that the new, majority controllers of the Congressional process can, by default in how things seem to happen nowadays, begin to shift their big, albeit unwieldy resources to the close, comprehensive process of review and reform of the frozen legal aftermath of 9/11 that al-Marri and you so clearly identify.
And, by the way, isn’t this how the constitution’s Framers intended it to be?
Yesterday, the American press reported on the release of a decision in an American federal appellate court of a decision that found that the US government could not treat its own nationals, arrested within its borders within itw own militarized legal processes for terrorists. The decision may well be overturned but its value lies in the close analysis it performs of the problem and its implications for the existing, well -besieged system. The decision was called "Al-Marri." Dhalia Lithwick is a well recognized and insightful American popular legal writer who publishes in the on-line Magazine "Slate.' Lithwick managed to tease out principles and support the Al-Marri decision. I think both she and the Court hit on yet another message-- the responsibility of the US Congress to give the "sober thought" needed -now-- for reform
Thank you for this. Putting the decision in perspective for the rest of us can be as close to important as what the majority in the decision, itself, attempts to do. Rightly or wrongly, deftly or not, this Court has given Americans and others a frame of view that falls within the better analytical and within the best educational traditions of the judicial role.
But you identify, of course, another important dimension to this. You put it as the need for “...getting down to the business of crafting a legal regime based on clean rules...” In this respect perhaps al-Marri reaches beyond its individual analysis to lend lessons to others in the governing branches, situate elsewhere.
By definition, this “getting down,” cannot be left to Courts alone. This Executive, at least, is frozen. You observe of terrorist acts, “For almost six years .. nothing has happened...[in the face of this] insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month...”
The Courts and the legal process, regardless of the breadth and depth of interventions and regardless of the weight of the resources invested in any individual litigation, are simply, practically, precluded from realistic access to the pool of data in the experience of government operations since 9/11. As much as they can stand as the protectors of both principles and individuals, the Courts can only be a well less than ideal mechanism for broad based legal policy review– even in the land that invented legal pragmatism.
So, if the Courts are hampered by their own limitations of process and resources and the Executive is frozen in accepting any need for reform, this policy role in the interim can only play out as a Congressional one– whatever that arm’s own limitations might be.
That, I suggest is the further lesson of al Marri– at least until there is the opportunity for review and thought by a new Executive – the only resort left for sober debate and tedious legal (or policy-) head-scratching can be that of Congress.
One hopes that the new, majority controllers of the Congressional process can, by default in how things seem to happen nowadays, begin to shift their big, albeit unwieldy resources to the close, comprehensive process of review and reform of the frozen legal aftermath of 9/11 that al-Marri and you so clearly identify.
And, by the way, isn’t this how the constitution’s Framers intended it to be?
Tuesday, June 12, 2007
Talking to Americans, Part III: Why Non Confidence is a Tool that American Legislators Should Use
TThe failure of the United States Senate to pass a motion of non-confidence in the US Attorney General, Alberto Gonzales, yesterday was in large measure successful when Republican Party officials were able to smirch (?) the vote as being illegitimate-- the grounds being that governmental no-confidence is a parliamentary and not an American model technique.The idea behind this post is that it is a tool that properly can and should be added to the tools available to American legislators seeking to constrain an administration inclined to run amuck.
* * *
During times when not just the President’s one-time counsel, but when the entire administration of the whole American Department of Justice, has elected to say and do, not what sought be done but what the “client” wants to hear, with deeply troubling constitutional consequences, I would have thought that the use of any legal or political legislative technique which might help to shore up the rule of the law would have been legitimate.
So...perhaps one might step more lightly on “across the pond” implication that allowed weak spirited legislators a cheap and convenient escape hatch from a vote of confidence that pitted principle against partisan convenience.
What has happened to the administration of American federal justice through this era of least the Gonzales era, is that through this time the Attorney General has persistently been brought to legislative account and has consistently failed, is an offence of constitutional process in a government that is supposed to be one of laws.
The motion of non-confidence in the Attorney-General ought to welcomed as another, precise and useful tool in the perpetual intellectual balancing act inherent in American republican government. It is not as though recent experience in the affairs of the administration of the republic, the facile and limp wristed responses to administration policies of civilian surveillance, of reasonable process in the arraignment and trial of suspected terrorists, the treatment of domestic suspected terrorist, straight forwardness in the characterization of military-legal affairs, to name a few, accurate suggest that the armamentarium available is exactly overflowing.
Think about this. The parliamentary system does not have a lock on the idea of non-confidence. It is no small constitutional or legal event when the senior legislative body in the US republic has seriously entertained a motion of non-confidence in a senior-most officer of the United States, has done so with the support of members of both political parties and when others of the governing party have escaped only by claiming that the instrument is foreign or, more to the point in the unspoken sub-text, British.
Non-confidence is a technique which American legislators ought to keep close at hand, and use frequently as required, with others, in recording and underlining the exercise of the clearly imposed constitutional duty: we are doing no favour to the legitimate administration of the law in any nation to play into the political hands of partisans who try to diminish the tool not on the grounds of its clear and obvious value, but on the cynical and false measurement of where it might have come from.
* * *
During times when not just the President’s one-time counsel, but when the entire administration of the whole American Department of Justice, has elected to say and do, not what sought be done but what the “client” wants to hear, with deeply troubling constitutional consequences, I would have thought that the use of any legal or political legislative technique which might help to shore up the rule of the law would have been legitimate.
So...perhaps one might step more lightly on “across the pond” implication that allowed weak spirited legislators a cheap and convenient escape hatch from a vote of confidence that pitted principle against partisan convenience.
What has happened to the administration of American federal justice through this era of least the Gonzales era, is that through this time the Attorney General has persistently been brought to legislative account and has consistently failed, is an offence of constitutional process in a government that is supposed to be one of laws.
The motion of non-confidence in the Attorney-General ought to welcomed as another, precise and useful tool in the perpetual intellectual balancing act inherent in American republican government. It is not as though recent experience in the affairs of the administration of the republic, the facile and limp wristed responses to administration policies of civilian surveillance, of reasonable process in the arraignment and trial of suspected terrorists, the treatment of domestic suspected terrorist, straight forwardness in the characterization of military-legal affairs, to name a few, accurate suggest that the armamentarium available is exactly overflowing.
Think about this. The parliamentary system does not have a lock on the idea of non-confidence. It is no small constitutional or legal event when the senior legislative body in the US republic has seriously entertained a motion of non-confidence in a senior-most officer of the United States, has done so with the support of members of both political parties and when others of the governing party have escaped only by claiming that the instrument is foreign or, more to the point in the unspoken sub-text, British.
Non-confidence is a technique which American legislators ought to keep close at hand, and use frequently as required, with others, in recording and underlining the exercise of the clearly imposed constitutional duty: we are doing no favour to the legitimate administration of the law in any nation to play into the political hands of partisans who try to diminish the tool not on the grounds of its clear and obvious value, but on the cynical and false measurement of where it might have come from.
Monday, June 11, 2007
Yet More on the General's Letter
The Huffington Post reports that General Pace was not renominated for this letter!
Update: The General's Letter
Today it has been announced that the US Government will not nominate General Pace (see "The General's Letter" below) to a further term of two years. The American defence secretary announced the decision by saying that the decision had been reached over some "weeks," and the strong speculation is that the General would have attracted strong political, criticism upon confirmation in the US Congress.
The General's Letter
Earlier this week Scooter Libby, the former assistant to the US Vice President who also carried the title of assistant to the President of the United States, was sentenced to thirty months in prison for perjury. The offence and the conviction came in the course of the investigation of a course of political actions involving a public relations-savvy and vocal couple, she, a spy who was outed-- which was the focus of the investigation into the "outing," which could be illegal under American law -- and her husband, a former American Ambassador.
The judge who imposed the sentence considered the lie for which Libby was convicted to be open, flagrant and sustained.
In preparation for sentencing, defence lawyers collected reference letters to be used to attempt to lighten the penalty to be imposed on Mr. Libby. The reference letters were released by the court earlier this week.
One of these was a letter from the Chairman of the American Joint Chiefs of Staff, General Peter Pace.
I read the letter and wondered why and whether it was appropriate for, this General wrote this letter. As I thought about it I became more concerned.
I posted the following or close to it on two major American blogs. It stimulated some response.
A man named Peter Pace, wrote American Federal Court Judge Reggie B. Walton on behalf of Mr. Libby.
Mr. Pace is a general in the United States Marine Corps and at the moment is the Chief of Staff for the American Armed forces. Pace told the judge that, from his association with Libby, Libby was always concerned about the "the right way to proceed – legally and morally" "not just what was in the best interests of the country."
The general signed his letter as, "General, United States Marine Corps."
One has to wonder about the propriety of this.
The temptations for those shopping for sentencing support are many and the temptation to seek a commendation from the military’s Chief of Staff are no doubt powerful indeed. One can understand why those supporting Scooter Libby might ask. General Pace’s scrambled eggs in a country in a time of war could be a powerful and toney endorsement.
But one has to think twice as to why, "Peter Pace, General, United States Marine Corps" might be tempted to oblige.
The General has the responsibility to execute the directives of the President of the United States.
He does not have a duty to make life easier for the President or his
associates and friends and the General does not exercise the office of Chief of Staff as either a political or personal fixer for any of the administration whom he is to serve. He does not have the duty to be the friend of Scooter Libby and indeed his letter seems to step lightly to make sure that it does not leave the impression that he is. Surely this is as axiomatic for Administration officials as it ought to be to senior American military leadership itself.
So why would General Pace do this?
He was not speaking as a colleague of Mr. Libby’s although there are no doubt many who can attest to Libby’s public record in which "the right way" was usually – although not always, the conviction proves– his byword. Pace and Libby had no record of personal cooperation, through charity or church-synagogue or public interest or professional work.
So while there were many who attested to Libby’s character to this Judge who could speak from the vantage point of personal experience and long and intimate knowledge, General Pace could not.
In writing this letter, one is left with the impression that he is left amongst those of the referees in this sentencing who was added not because of the substance of what he could say, but the fact that it was America’s highest uninformed officer who was saying it.
With no personal motivation, with the recognition – which could not have escaped General Pace-- that there may others who were in a far better position of knowledge and experience to speak kindly of Mr. Libby, the General’s letter risks being marked as nothing more than the act of granting a personal favour.
And that in turn, opens the door to cynical questions of whether there was a favour, or the expectation of a favour, in return.
In doing this, this risks the question the next time he, or another high ranking officer of the American military stands to give evidence before a committee of the US Congress or is cited before the United Nations or is deferred to in the myriad of press briefings as a source of direct military information and advice, the General is risking doubt as to what favours they have been asked to grant and what favours had been given or expected in return.
The judge who imposed the sentence considered the lie for which Libby was convicted to be open, flagrant and sustained.
In preparation for sentencing, defence lawyers collected reference letters to be used to attempt to lighten the penalty to be imposed on Mr. Libby. The reference letters were released by the court earlier this week.
One of these was a letter from the Chairman of the American Joint Chiefs of Staff, General Peter Pace.
I read the letter and wondered why and whether it was appropriate for, this General wrote this letter. As I thought about it I became more concerned.
I posted the following or close to it on two major American blogs. It stimulated some response.
A man named Peter Pace, wrote American Federal Court Judge Reggie B. Walton on behalf of Mr. Libby.
Mr. Pace is a general in the United States Marine Corps and at the moment is the Chief of Staff for the American Armed forces. Pace told the judge that, from his association with Libby, Libby was always concerned about the "the right way to proceed – legally and morally" "not just what was in the best interests of the country."
The general signed his letter as, "General, United States Marine Corps."
One has to wonder about the propriety of this.
The temptations for those shopping for sentencing support are many and the temptation to seek a commendation from the military’s Chief of Staff are no doubt powerful indeed. One can understand why those supporting Scooter Libby might ask. General Pace’s scrambled eggs in a country in a time of war could be a powerful and toney endorsement.
But one has to think twice as to why, "Peter Pace, General, United States Marine Corps" might be tempted to oblige.
The General has the responsibility to execute the directives of the President of the United States.
He does not have a duty to make life easier for the President or his
associates and friends and the General does not exercise the office of Chief of Staff as either a political or personal fixer for any of the administration whom he is to serve. He does not have the duty to be the friend of Scooter Libby and indeed his letter seems to step lightly to make sure that it does not leave the impression that he is. Surely this is as axiomatic for Administration officials as it ought to be to senior American military leadership itself.
So why would General Pace do this?
He was not speaking as a colleague of Mr. Libby’s although there are no doubt many who can attest to Libby’s public record in which "the right way" was usually – although not always, the conviction proves– his byword. Pace and Libby had no record of personal cooperation, through charity or church-synagogue or public interest or professional work.
So while there were many who attested to Libby’s character to this Judge who could speak from the vantage point of personal experience and long and intimate knowledge, General Pace could not.
In writing this letter, one is left with the impression that he is left amongst those of the referees in this sentencing who was added not because of the substance of what he could say, but the fact that it was America’s highest uninformed officer who was saying it.
With no personal motivation, with the recognition – which could not have escaped General Pace-- that there may others who were in a far better position of knowledge and experience to speak kindly of Mr. Libby, the General’s letter risks being marked as nothing more than the act of granting a personal favour.
And that in turn, opens the door to cynical questions of whether there was a favour, or the expectation of a favour, in return.
In doing this, this risks the question the next time he, or another high ranking officer of the American military stands to give evidence before a committee of the US Congress or is cited before the United Nations or is deferred to in the myriad of press briefings as a source of direct military information and advice, the General is risking doubt as to what favours they have been asked to grant and what favours had been given or expected in return.
THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY. Not Suicide-A Pact
Through the Fall of 2006 and into the summer of this year on-lookers of the American Constitutional debate have gnawed away at Not a Suicide Pact, in an act of faith, searching for some sign of a sense of coherence and intellectual integrity that had to, just had to, be burning somewhere under its surface -- surely, somewhere, somewhere in Suicide, the rash, rude, clever, prolific, privileged, jurisprude Posner, had set to burning some flicker of twinkling insight.
Through the months, Suicide at hand, we whipped back to Holmes and then forward through the pragmatists and then sought some kind of refuge even farther back in the words of the Framers, trying to dissect out some tiny sense of theme or consistency. We knew that Posner, the profiled American federal appellate Court judge and academic could never, on principle, risk to disappoint in a matter of integrity.
Those months of Fall and Winter and Spring have been a lonely time.
Trade reviews and publishers’ blurbs alone, even with the witty depredations of this non-suicidal work on one thinking persons’ blog site or another were nothing at all blank out that silence.
Fortunately, albeit later rather than sooner, signs of scholarly enterprise have now appeared.
Professor Cole’s substantial contribution to analysis of Posner’s assertedly non-suicidal work is to demonstrate that the judge’s words are entirely devoid of cognition that -- whatever pragmatism might say of how legal decisions are made -- the constitution that he wants to bend into pretzels is not just an instrument of his convenience. It is founded on consensus, not as to outcome, but as to how outcomes should be reached.
Cole’s review says, “In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others”
Setting aside the fact that I have tried to read between and around the lines of this learned judge’s approach for months and have found no sense of understanding of any kind of consensus or any sense of a spirit of the constitution at all, I am grateful that Professor Cole’s intellect and skills have allowed him to tease out and highlight the Constitution’s essentiality as one of pre-commitment. (I am grateful too to Professor Cole for the idea of “pre-commitment,” itself as a noun, in the context of this debate.)
Cole amply although courteously sees what is happening in this suicidal work and for this I am and no doubt other labourers in this unfertile garden for so many months are grateful.
“Posner, Cole says, “… prefers to resolve the question by the ad hoc weighing of imponderables,” and Posner “…ignores this line of cases…” and Posner “… simply announces constitutional conclusions without any attempt to defend them through cost-benefit (or indeed any other) analysis.” And yet in another place he cites : “…[Posner’s] open-ended balancing approach that [Posner] admits ultimately involves weighing imponderables.”
Cole’s ability to isolate and rationalize the component of pre-commitment, as the central organizing principle of the constitutional enterprise itself, not to mention his identification of the existential absence of the idea in any way, in Suicide, is the key to his identification of the bankruptcy of this suicidal work.
Cole’s review, and perhaps Cole himself, suffers from this one fundamental flaw itself. He is – apparently – too much of a gentleman or an academic -- to allow himself to make the one final basic observation which the Suicidal work deserves: with respect, this book is a crock.
The remaining complaint respecting Professor Cole’s work aside from his gentlemanliness to a fault, is his sense of timing. The next time, please, perhaps he could be a little quicker off the mark.
Through the months, Suicide at hand, we whipped back to Holmes and then forward through the pragmatists and then sought some kind of refuge even farther back in the words of the Framers, trying to dissect out some tiny sense of theme or consistency. We knew that Posner, the profiled American federal appellate Court judge and academic could never, on principle, risk to disappoint in a matter of integrity.
Those months of Fall and Winter and Spring have been a lonely time.
Trade reviews and publishers’ blurbs alone, even with the witty depredations of this non-suicidal work on one thinking persons’ blog site or another were nothing at all blank out that silence.
Fortunately, albeit later rather than sooner, signs of scholarly enterprise have now appeared.
Professor Cole’s substantial contribution to analysis of Posner’s assertedly non-suicidal work is to demonstrate that the judge’s words are entirely devoid of cognition that -- whatever pragmatism might say of how legal decisions are made -- the constitution that he wants to bend into pretzels is not just an instrument of his convenience. It is founded on consensus, not as to outcome, but as to how outcomes should be reached.
Cole’s review says, “In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others”
Setting aside the fact that I have tried to read between and around the lines of this learned judge’s approach for months and have found no sense of understanding of any kind of consensus or any sense of a spirit of the constitution at all, I am grateful that Professor Cole’s intellect and skills have allowed him to tease out and highlight the Constitution’s essentiality as one of pre-commitment. (I am grateful too to Professor Cole for the idea of “pre-commitment,” itself as a noun, in the context of this debate.)
Cole amply although courteously sees what is happening in this suicidal work and for this I am and no doubt other labourers in this unfertile garden for so many months are grateful.
“Posner, Cole says, “… prefers to resolve the question by the ad hoc weighing of imponderables,” and Posner “…ignores this line of cases…” and Posner “… simply announces constitutional conclusions without any attempt to defend them through cost-benefit (or indeed any other) analysis.” And yet in another place he cites : “…[Posner’s] open-ended balancing approach that [Posner] admits ultimately involves weighing imponderables.”
Cole’s ability to isolate and rationalize the component of pre-commitment, as the central organizing principle of the constitutional enterprise itself, not to mention his identification of the existential absence of the idea in any way, in Suicide, is the key to his identification of the bankruptcy of this suicidal work.
Cole’s review, and perhaps Cole himself, suffers from this one fundamental flaw itself. He is – apparently – too much of a gentleman or an academic -- to allow himself to make the one final basic observation which the Suicidal work deserves: with respect, this book is a crock.
The remaining complaint respecting Professor Cole’s work aside from his gentlemanliness to a fault, is his sense of timing. The next time, please, perhaps he could be a little quicker off the mark.
Friday, June 8, 2007
Talking to the English
Clearly, comment writers are feeling -- as well as they are experiencing and writing about ? constrictions on traditional political liberties in the UK.
Fair enough.
But in the case of the Straw article it certainly seems as though readers' feelings are especially aggravated by who the author is, rather than what he is saying.
That, too, may be fair enough, but as a matter of political discourse, readers perhaps should be careful not to spill out the baby along with the bath.
Setting aside (the deep and clear and obvious and longstanding and evidently for many, the aggravating)identification of Mr. Straw with Labour, and splitting off whatever disappointments or betrayals comment writers have experienced at its hands or at the hands of its leadership, how could you ever quarrel with Mr. Straw's thesis?
Why shouldn?t the UK advance its obvious heritage as the polity which, after all, effectively invented Western political liberty should now be celebrating it? And why shouldn?t it be used as an instrument of national unity?
Perhaps this is just further cyncial, small p-political manipulation by a worn and overused political operative in the form of Jack Straw. But even if it is, won't the
And perhaps its own propaganda will blunt or temper the current government's impulse or the impulse of any future government to constrict freedoms on other occasions in the face of other threats, real or perceived.
Most of the time in political discussion as well as practice, humankind is prone to shoot the messenger. But it may be wise for us to be just as certain we are not careless enough to take aim at the message as well, and commit a double homicide.
Fair enough.
But in the case of the Straw article it certainly seems as though readers' feelings are especially aggravated by who the author is, rather than what he is saying.
That, too, may be fair enough, but as a matter of political discourse, readers perhaps should be careful not to spill out the baby along with the bath.
Setting aside (the deep and clear and obvious and longstanding and evidently for many, the aggravating)identification of Mr. Straw with Labour, and splitting off whatever disappointments or betrayals comment writers have experienced at its hands or at the hands of its leadership, how could you ever quarrel with Mr. Straw's thesis?
Why shouldn?t the UK advance its obvious heritage as the polity which, after all, effectively invented Western political liberty should now be celebrating it? And why shouldn?t it be used as an instrument of national unity?
Perhaps this is just further cyncial, small p-political manipulation by a worn and overused political operative in the form of Jack Straw. But even if it is, won't the
And perhaps its own propaganda will blunt or temper the current government's impulse or the impulse of any future government to constrict freedoms on other occasions in the face of other threats, real or perceived.
Most of the time in political discussion as well as practice, humankind is prone to shoot the messenger. But it may be wise for us to be just as certain we are not careless enough to take aim at the message as well, and commit a double homicide.
Talking to Americans
Even to an outsider to American standards of the administration of justice, the blase duplicity of the Gonzales’ Chief of Staff’s “Griffin” emails, and the patent cynicism of the firings that they project is not just frightening, but terribly frightening. And the implications they do lie, as you more than rightly say, at its heart in whether “the criminal justice system will be turned into a partisan political tool.”And the firings, as much as the abuse of the prosecutorial appointments system they dramatically spotlighted is a horrible scandal.But also to an outsider, as certainly as exhilarating and as noble as vilifying these things – whether on their own or as part of the larger pernicion of American politico-“legocracy” – might be, isn’t the real remedy, to coin a phrase, right under your nose[s]? And isn’t it really structural, not political?The Bush administration was not – as I understand it – the first to treat the offices of US Attorney system as a kind of political swag bag. Clinton and Reno are said to have used the power of appointment, perhaps not quite so cynically, but certainly as sweepingly, as an instrument at least of political power – whether or not there might be evidence elsewhere of its use for political reward. Politics being what politics is, one suspects its use for political ends, perhaps not quite so spectacular as in this case, extends back to the time of the invention of the office.So surely, the answer must be, to de-politicize the office itself. So, at the same time this conduct is condemned as roundly and persistently and as loudly as anyone, the real answer has to be to transform these offices which are not only seen to be, but which also structurally are, independent, authoritative executors of justice.Other countries with an English legal base characteristically use a model fashioned on the UK’s, “Director of Public Prosecutions” model. Under that system, prosecutors operate independently of political direction, and appointment, except in the broadest sense. They are accountable to the Director and through the Director to the relevant constitutional authority – the legislature – and by day-in day-out measures, they repeatedly operate successfully. As these current shudders run through the US political-legocracy, by all means, scandalize and condemn. Try to raise the political cost of the abuses and make sure they can’t happen again.But you folks are the ones who invented the operating political ideals of checks and balances, the value of separation and oversight.Isn’t it time you put them in place in the federal prosecutorial system? And they really are, right under your nose.
More American Problems
Once again, this is a post that is is more than a month old at this posting. The issue here was that the writer who prompted this response was looking to minimize the gravity of the U.S. Attorney General's performance in the matter of deposed U.S. attorneys
All right, let’s look at this one more time. Four leading, experienced, distinguished, Senators of Attorney General Gonzales’ OWN PARTY – not Democrats, not Independents, not outliers, not grumps or wingnuts, and not even close to renegades — told him to take a walk.
Publicly! In front of the TV cameras! When they knew the whole country was watching!
They didn’t do it because they didn’t like the man’s hairstyle. And when they did it, they well knew that he was the president’s hand-picked choice for his position.
But even the nicest of them called the man “incompetent” and the rest were far less complimentary.
And now folks want to debate who is more sinner than sinned against?
Without deference and even without any apparent worry about the gravity of its own actions, the US Administration might as well have deliberately tried to marginalize and embarrass leading members of their own political party in the senior legislative house of the nation. It did so careless of how obviously it diminished these individuals, leaders in their own right, and did so, the more so, careless of its own deep seated institutional responsibility both to the other branches and to the intrinsic legal and semi-constitutional nature of the office of the Attorney-General.
The Attorney General of the United States, borrowing a bit from the British Commonwealth countries, is “the Chief Law Officer of the Republic.” I accept that the American constitutional system sees that officer having some policy control over the enforcement of the law and I accept that from time to time it seems prepared to take a risk that some administrations will want to read more politics into “policy” than the letters of the word allow. But at its roots, your Republic RELIES on this officer to enforce federal law. Not traffic tickets or unsightly premises by-laws but the essence of the legal operating system of the US federal government, the most powerful nation on earth, ever.
American Constitutional principle is founded on the ideal that there is to be accountability, that accountability of executive officers, where necessary, is to take place on an ongoing basis, that by convention if not by black letter law, the members of the country’s cabinet can be brought in, one thought, to respond to legitimate, democratic concerns in the houses of the legislature.
And American Senators have a constitutional blood line that goes back to the first days after the War of Independence to do this. For the sake of this discussion, forget about the Democratic ones, they can look after themselves.
The gents are far from turnips. For your democracy and others, one hopes that they are mad – or embarrassed – enough to demonstrate it.
All right, let’s look at this one more time. Four leading, experienced, distinguished, Senators of Attorney General Gonzales’ OWN PARTY – not Democrats, not Independents, not outliers, not grumps or wingnuts, and not even close to renegades — told him to take a walk.
Publicly! In front of the TV cameras! When they knew the whole country was watching!
They didn’t do it because they didn’t like the man’s hairstyle. And when they did it, they well knew that he was the president’s hand-picked choice for his position.
But even the nicest of them called the man “incompetent” and the rest were far less complimentary.
And now folks want to debate who is more sinner than sinned against?
Without deference and even without any apparent worry about the gravity of its own actions, the US Administration might as well have deliberately tried to marginalize and embarrass leading members of their own political party in the senior legislative house of the nation. It did so careless of how obviously it diminished these individuals, leaders in their own right, and did so, the more so, careless of its own deep seated institutional responsibility both to the other branches and to the intrinsic legal and semi-constitutional nature of the office of the Attorney-General.
The Attorney General of the United States, borrowing a bit from the British Commonwealth countries, is “the Chief Law Officer of the Republic.” I accept that the American constitutional system sees that officer having some policy control over the enforcement of the law and I accept that from time to time it seems prepared to take a risk that some administrations will want to read more politics into “policy” than the letters of the word allow. But at its roots, your Republic RELIES on this officer to enforce federal law. Not traffic tickets or unsightly premises by-laws but the essence of the legal operating system of the US federal government, the most powerful nation on earth, ever.
American Constitutional principle is founded on the ideal that there is to be accountability, that accountability of executive officers, where necessary, is to take place on an ongoing basis, that by convention if not by black letter law, the members of the country’s cabinet can be brought in, one thought, to respond to legitimate, democratic concerns in the houses of the legislature.
And American Senators have a constitutional blood line that goes back to the first days after the War of Independence to do this. For the sake of this discussion, forget about the Democratic ones, they can look after themselves.
The gents are far from turnips. For your democracy and others, one hopes that they are mad – or embarrassed – enough to demonstrate it.
Rule of Law -- Changing conceptions
"Rule of Law," of course, is the elemental, organizing, democratic principle.
Liquor License?
From time to time the national legal establishment rediscovers that in one way or another a province has overstepped the constitutional prohibition against their levying "indirect" taxes.This one hit because a bar owner in New Brunswick had the wit and the inclination to challenge New Brunswick liquor user charges on the basis that they were really "indirect" taxes. That province had to deliver up its consitutionally ill-gotten gains.News of the decision stimulated a bevy (!) of speculative avarice in the local press. Government needs not only to get on this issue and make sure that any windfalls go to the right places, not the wrong. Just as much it needs to address the bigger issue of putting class action legislation in place in Nova Scotia.
This was now written some time ago, but it's as applicable now as it was three months ago.
Exuberant Halifax bar owners and lawyers who have been winding up to try to score a major hit resulting from the Supreme Court of Canada’s recent decision declaring certain government liquor user fees unconstitutional had best walk softly.Two weeks ago the court announced that certain charges the New Brunswick liquor corporation had been levying on bar owners were unconstitutional and could not be kept by that province. The judges directed that the monies collected be returned, with interest, to the people who signed the cheques paying them.This weekend, lawyers and tavern owners have been lining up to tell Halifax’s press their intention to take class action lawsuits against this province to recover similar past payments.They may well be leading with their chins. The courts have left entirely open the possibility that the consumers who funded the millions of dollars of payments hidden within the bold print of their bar tabs have an equal right against the very people who are now rubbing their hands at the prospect of a windfall.And maybe, just maybe, creative lawyers and policy makers within the government may find the way to prevent a windfall to liquor operators and to benefit the patrons whose wallets funded the payments.The Supreme Court’s recently released decision in a lawsuit against the New Brunswick department of finance, held that the province had to repay night club operators millions of dollars in "user charges" collected over the past six years. Finance department officials had, the court ruled, collected the charges unlawfully. Legally, the Court concluded the funds have to be returned to the corporations who had remitted it.Over the weekend, this ruling has lead to local liquor purveyors rubbing their hands and contemplating collective war by "class action" against this province which has, in the past, levied such charges itself.But before Nova Scotia’s publicans and their various counsel break open the champagne, they had better take a deep breath and perhaps even put the cork back in, at least for a minute.It is true that the court’s decision, Kingstreet v. New Brunswick, does say that that province must remit its unconstitutional takings to the bar owners whose cheques paid it. But, there needs to be a big red warning light going off here.Kingstreet is a long way from saying that the money belongs to the bar owners or, indeed, if challenged by patrons who actually funded it, that the night club owners really get to keep it.That hole could, and perhaps should, well mean that Nova Scotia is a long way from seeing any money it collected finding its way into bar owners’ pockets.Here’s the background. The Supreme Court judges said, by collecting these charges from the bars, the province was really levying an "indirect" tax on the operations and through the operations, on their patrons. But in this country, our Constitution gives the power to levy indirect" taxes, unlike direct taxes (such as income taxes or sales taxes, which both the provinces and Ottawa can charge) exclusively to the Federal Government.Therefore, the decisions says, because the tax was collected unconstitutionally, it has to be returned toto the bars who had paid it. The Court reasoned that the "rule of law," the principle that everyone–governments and citizens alike are subject to the law and must abide by it– meant that governments should not be allowed to keep the fruits of a tax that they charged illegally.But the fact that the monies were to be paid back to tavern operators had nothing to do with who really is entitled to them, and had everything to do with the fact that in the considered view of the justices, the province was not.So, there needs to be a big red light flashing here...to bar owners and everyone else.What the proper treatment of taxes and other charges that a government has wrongly collected should be has been the subject of a legal debate for decades. Some judges and some courts have held that because they have been collected from persons who have only "passed on" the expense to others such as consumers, the illegal charges are not something that actual cheque writers such as the bar owners who remitted them have lost themselves. Therefore, so the reasoning goes, the bar owners receiving repayment of these charges have given up nothing themselves, and so should get nothing.Many courts had held in the past that no one in the position of the bar owners should get such a windfall.In Kingstreet, however, Canadian law has now been identifyied as saying that in ordering repayments of unlawful government taxes and charges, the court should only consider that as between government and the liquor establishments, government should not be allowed to keep the proceeds. The court concluded that between the crown and the liquor purveyors, , the question of whether the payor in the position of the liquor interests has been able to recoup from others the taxes, such as consumers, is "‘simply irrelevant.’"As between consumers and the liquor establishments themselves, however, there is every probability that consumers have their own enforceable right to recover their own overpayments from the bars.That is a far cry from saying that the liquor owners would be allowed to keep it.What does this mean?Firstly, to the extent that bar owners in this province do claim or receive a repayment of wrongly collected charges the would-be class action warriors could well be subject to their own "class action" suit, by their own patrons.But more importantly the Kingstreet decision, and the marvels of constitutional law, could well leave open a prospect for a province like this one to consider its own legislation, determining how, and to whom the illegally gotten gains could be directed not to hungry bar owners and tavern operators but to or for the benefit of the people who actually paid them.I would look hard, if I were in government to find a way to remit any illegally collected contributions to the individuals who have really suffered in their operation.The Kingstreet decision did not say that governments have to refund liquor charges to liquor operators themselves but only that between the two parties to that action, the province and the operator itself that monies had to be refunded.The province should look hard for means to give individual consumers whose dollars ultimately paid those taxes, the legislated opportunity participate in any of these class actions by bar owners, to establish their own separate claims to the funds and to redirect payment of these funds outside of the bars themselves to the consumers who can benefit from them.One place to start might be to see it judicially and legislatively applied for the benefit of the consumers with alcohol dependency or the gambling addiction who funded their own fair share of the charges.-30-
This was now written some time ago, but it's as applicable now as it was three months ago.
Exuberant Halifax bar owners and lawyers who have been winding up to try to score a major hit resulting from the Supreme Court of Canada’s recent decision declaring certain government liquor user fees unconstitutional had best walk softly.Two weeks ago the court announced that certain charges the New Brunswick liquor corporation had been levying on bar owners were unconstitutional and could not be kept by that province. The judges directed that the monies collected be returned, with interest, to the people who signed the cheques paying them.This weekend, lawyers and tavern owners have been lining up to tell Halifax’s press their intention to take class action lawsuits against this province to recover similar past payments.They may well be leading with their chins. The courts have left entirely open the possibility that the consumers who funded the millions of dollars of payments hidden within the bold print of their bar tabs have an equal right against the very people who are now rubbing their hands at the prospect of a windfall.And maybe, just maybe, creative lawyers and policy makers within the government may find the way to prevent a windfall to liquor operators and to benefit the patrons whose wallets funded the payments.The Supreme Court’s recently released decision in a lawsuit against the New Brunswick department of finance, held that the province had to repay night club operators millions of dollars in "user charges" collected over the past six years. Finance department officials had, the court ruled, collected the charges unlawfully. Legally, the Court concluded the funds have to be returned to the corporations who had remitted it.Over the weekend, this ruling has lead to local liquor purveyors rubbing their hands and contemplating collective war by "class action" against this province which has, in the past, levied such charges itself.But before Nova Scotia’s publicans and their various counsel break open the champagne, they had better take a deep breath and perhaps even put the cork back in, at least for a minute.It is true that the court’s decision, Kingstreet v. New Brunswick, does say that that province must remit its unconstitutional takings to the bar owners whose cheques paid it. But, there needs to be a big red warning light going off here.Kingstreet is a long way from saying that the money belongs to the bar owners or, indeed, if challenged by patrons who actually funded it, that the night club owners really get to keep it.That hole could, and perhaps should, well mean that Nova Scotia is a long way from seeing any money it collected finding its way into bar owners’ pockets.Here’s the background. The Supreme Court judges said, by collecting these charges from the bars, the province was really levying an "indirect" tax on the operations and through the operations, on their patrons. But in this country, our Constitution gives the power to levy indirect" taxes, unlike direct taxes (such as income taxes or sales taxes, which both the provinces and Ottawa can charge) exclusively to the Federal Government.Therefore, the decisions says, because the tax was collected unconstitutionally, it has to be returned toto the bars who had paid it. The Court reasoned that the "rule of law," the principle that everyone–governments and citizens alike are subject to the law and must abide by it– meant that governments should not be allowed to keep the fruits of a tax that they charged illegally.But the fact that the monies were to be paid back to tavern operators had nothing to do with who really is entitled to them, and had everything to do with the fact that in the considered view of the justices, the province was not.So, there needs to be a big red light flashing here...to bar owners and everyone else.What the proper treatment of taxes and other charges that a government has wrongly collected should be has been the subject of a legal debate for decades. Some judges and some courts have held that because they have been collected from persons who have only "passed on" the expense to others such as consumers, the illegal charges are not something that actual cheque writers such as the bar owners who remitted them have lost themselves. Therefore, so the reasoning goes, the bar owners receiving repayment of these charges have given up nothing themselves, and so should get nothing.Many courts had held in the past that no one in the position of the bar owners should get such a windfall.In Kingstreet, however, Canadian law has now been identifyied as saying that in ordering repayments of unlawful government taxes and charges, the court should only consider that as between government and the liquor establishments, government should not be allowed to keep the proceeds. The court concluded that between the crown and the liquor purveyors, , the question of whether the payor in the position of the liquor interests has been able to recoup from others the taxes, such as consumers, is "‘simply irrelevant.’"As between consumers and the liquor establishments themselves, however, there is every probability that consumers have their own enforceable right to recover their own overpayments from the bars.That is a far cry from saying that the liquor owners would be allowed to keep it.What does this mean?Firstly, to the extent that bar owners in this province do claim or receive a repayment of wrongly collected charges the would-be class action warriors could well be subject to their own "class action" suit, by their own patrons.But more importantly the Kingstreet decision, and the marvels of constitutional law, could well leave open a prospect for a province like this one to consider its own legislation, determining how, and to whom the illegally gotten gains could be directed not to hungry bar owners and tavern operators but to or for the benefit of the people who actually paid them.I would look hard, if I were in government to find a way to remit any illegally collected contributions to the individuals who have really suffered in their operation.The Kingstreet decision did not say that governments have to refund liquor charges to liquor operators themselves but only that between the two parties to that action, the province and the operator itself that monies had to be refunded.The province should look hard for means to give individual consumers whose dollars ultimately paid those taxes, the legislated opportunity participate in any of these class actions by bar owners, to establish their own separate claims to the funds and to redirect payment of these funds outside of the bars themselves to the consumers who can benefit from them.One place to start might be to see it judicially and legislatively applied for the benefit of the consumers with alcohol dependency or the gambling addiction who funded their own fair share of the charges.-30-
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