Showing posts with label Eric Holder. Show all posts
Showing posts with label Eric Holder. Show all posts

Thursday, 24 February 2011

Obama Administration Decides DOMA is Unconstitutional



Attorney General Holder yesterday announced that the Obama administration would no longer defend the so-called Defence of Marriage act in Federal Court.

This is great news. But it's a little complicated - so I've been reading up on the matter trying to figure out exactly what the Justice Department's new policy now means, and what the implications will be. Lawyers who read this blog (I know you're out there!) please feel free to chime in with further info as I'm just figuring this out as I go along.

The big news here is that the Obama administration believes gays and lesbians DO meet the standard of requiring heightened scrutiny under the equal protection clause of the constitution. Previous court cases have been raised in jurisdications where the courts had previously ruled that this standard should not be applied to sexual minorities - but no such precedent exists in the 2nd Circuit Court, where two new cases are to be tried. Nor has the Supreme Court ever ruled on this specific question.

The Obama administration therefore had no precendent to be bound or guided by in this instance, and the Justice Department therefore had to fashion its legal reasoning from scratch.

Under those circumstances, the position that they take is that section 3 of the Defence of Marriage act - the portion that specifically prevents the Federal government from recognising same sex marriage that are legal within a particular state - is unconstitutional. They will not defend it. But that doesn't mean that it is no longer law.

Until either 1) Congress repeals the law or 2) a Federal court rules the law unconstitutional, the provision will stay on the books.

So there's no immediate effect to this decision. But the government's position does make it far more likely that the law will be struck down by the courts, because it is difficult for anyone other than the federal government to claim that they have legal standing to defend the law.

This is a narrow, legalistic decision on the part of the Obama Justice Department, but the thinking that underlies it is boldly clear:
“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.


“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”
If a court eventually does decide that Section 3 is unconstitutional, as the Obama administration believes, that would greatly complicate the work of the US Government because suddenly we would have a patchwork system in place for federal benefits. Gay couples would have immigration rights in Massachusetts, but not in Ohio. They could have social security survivor benefits in Iowa, but not in Kansas.

But I say - bring on the mess. Because the more people are forced to confront the reality of gay men and woman and their "unreasonable demands" to be treated just like everybody else, the more hollow and pointless the arguments of the opponents seem.

Monday, 13 July 2009

Torture is the Rule, Justice the Exception. America Should be Exceptional

It's worth taking a few moments to read the thoughts of (the outstanding blogger) Hilzoy on the question of prosecutions for torture under the Bush Administration. Here's the core argument:

People around the world are not under any illusions about whether or not we tortured people. They know that we did, and that fact has already, and rightly, done enormous damage to our image.

What they don't know is whether we are prepared to do anything about it. Do we just lecture other people about their shortcomings, or are we ready to face up to our own? Most of the people I've met abroad assume that we will do nothing. They don't think this because of any particular dislike of the United States; they just assume that that is the way things work. If we do not hold anyone to account for any of the crimes that were committed under the last administration, they will not be surprised.

If we do hold people to account, on the other hand, that will make an impression.
I think that's a good point - and an important one.

Torture has been a tool of the powerful for millenia, and is still routine practice in much of the world. Although it's not an effective tool for securing reliable and usable intelligence, it's a great way to extract false confessions or other information to confirm what the torturer already believes to be true. For this reason, the powerful are always reluctant to give it up - everyone likes to have their assumptions "proven" correct.

But over the past few centuries, Western society has slowly but surely been building a philosophy of government that, nominally at least, respects the rights of the individual citizen enough to make torture morally and ethically repugnant. At least, that is, within our own borders.

It's worth remembering that in many respects America has not even come close (has not even tried) to living up to these ideals in our relations overseas - thus for many countries their main experience of the US is CIA supported Coups to overturn their democratically elected leaders, or our tendancy to speak stirring words about the evils of torture whilst handing over our prisoners to their dictatorial rulers to be tortured for us.

So, understandably, much of the world is not too impressed when America talks about its values and ideals - they've never seen us living up to them.

If they saw a former US President and Vice President get a fair and impartial trial and potentially even be convicted for torturing Muslim detainees, that would be a pretty high profile example of standing by our principles, come hell or high water.

BUT: in terms of public perceptions overseas and credibility here at home, any such investigation and prosecution must be handled at arms length by the administration. After all, if Obama agressively pursues criminal investigation of a former administration that could look like just another example of lese majeste - the new power in town showing his muscle by beating up on the defeated party.

No, it should be handled calmly, without rushing, ideally by appointing a genuinely independant prosecutor who will operate outside of the administration's purview. Meanwhile, Obama can get on with the work of the nation without distraction.

And it turns out that this is exactly what is likely to happen.

Thursday, 18 June 2009

Oh SNAP! Eric Holder lets 'em know who's in charge

Ranking Republican on the Senate Judiciary Committee Jeff Sessions takes Attorney General Eric Holder to task for releasing torture memos (cuz torture itself isn't offensive, apparently, but sharing legal memos that provided unconvincing legal rationales for torture is the end of the Republic. Or something. I'm still waiting for my Republican to English dictionary to arrive). In the course of it, he seems to forget for a moment that Holder is, in fact, in charge now. Holder sets him straight, but quick.



SESSIONS: Well it was disapproved by your predecessor, Judge Mukasey, and Mr. Hayden, the CIA, um, DIA [sic] director. They didn’t approve of that at all. … You were willing to release matters that the DNI and the Attorney General believe were damaging to our national security.

HOLDER: Well, one attorney general thought that. I am the Attorney General of the United States, and it is this attorney general’s view that the release of that information was appropriate, as well as the president of the United States. I respect their opinion, but I had to make the decision, holding the office that I now hold.