Author Archives: Michael Froomkin

Testing Times for Tester Already

Senator Jon Tester’s been in office about a day, and already people are fretting about whether his staff choices — mostly DC insiders — are going to get with the program or are going to waffle.

Left in the West :: It’s Official Today, Jon — Now How Will You Use This Opportunity? I’m writing this letter, though, because — to be honest — a lot of us feel pushed aside, like we’re not to be trusted. It’s a strange feeling when you get the impression that you can’t be trusted by the campaign you gave a year-and-a-half of your life to. But that’s the feeling I’ve been getting — and I know, once again, that I’m not alone.

Why do I feel this way? Why do others who were among your earliest backers feel this way? Honestly, some of it is personnel decisions. It’s nothing against any of them in particular, it’s just that the team as a whole doesn’t really share the values of the Jon I know. Early on in the campaign, we talked about fighting for the middle class and standing up on trade deals. Now your top policy person comes from a Senator who supported CAFTA, the bankruptcy bill, and full repeal of the estate tax. Last I checked, you didn’t want to represent multi-national corporations, Wall Street, or the super-rich. Bridget may be wonderful. I have no idea. But I worry about anyone who spent six years with Bill Nelson.

I worry about what your team will be saying on policy. In the primary, you announced that you wanted a universal Children’s Health Insurance Program. Will you be signing on to one soon? What’s your big goal on energy — you’ll be on the committee and it’s an issue that you care about deeply. If a bankruptcy bill comes up and we can repeal that attack on working families, will you oppose it the way we did in the campaign?

You need a staff that has people at the top who share your values and whose first concern is for you and whether they are running the office the way you would want to. That means that they share your priorities — even if your priority isn’t getting re-elected. Otherwise, on these big decisions, the fight will be non-stop between you and your staff. And while there should be disagreements on the staff and between you and the staff, I want to avoid everything being a battle for you.

You also need a staff that realizes that this race was won as much by the first 3,000 votes you got as it was by the last 3,000 votes you got. The people I know who came together early on to say you could do this are some of the smartest, hardest working people I know in this game. And, unless I’m wrong, it seemed like you enjoyed our company quite a bit, too.

You know me, Jon. I’ve got a lot of faith in you as a person and as a policymaker. You’re now in a place I don’t fully understand and that I think it’ll take some adjusting to on your end. Beyond that, I hope you know that I am loyal to you — probably to a fault. I wouldn’t be writing this if I wasn’t worried. And I wouldn’t be writing this if I wasn’t hearing from a lot of other people who worked hard for you — making phone calls, pounding pavement — that they are also worried.

It may sound premature, although it is far from harsh. (“The revolution eats its children”?) But from what I hear this letter — and the fairly widespread feelings it reflects — was sparked not only by the failure to hire any of the insurgent locals as DC staff, but also by some strange comments by Tester’s new staff people denigrating his core supporters.

Incidentally, the author of the above, Matt Singer, didn’t apply for a job with Tester in DC, so this isn’t sour grapes.

Posted in Politics: US | Comments Off on Testing Times for Tester Already

This is Hilarious

Lieberman Party Now in Hands of Critic:

After the senator’s Nov. 7 victory under the Connecticut for Lieberman Party banner, John Orman switched his party affiliation from Democrat to Connecticut for Lieberman and voted himself chairman.

Orman, a political science professor who ran briefly against Lieberman last year, said only critics, bloggers and anyone named Lieberman can join the party, which he said would be a watchdog of the senator’s actions.

Posted in Politics: US | 1 Comment

On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

About a month ago, the New Yorker published Killing Habeas Corpus, Jeffrey Toobin's profile of Senator Specter's take on the Military Commissions Act (aka 'The Torture Bill'). It contained a revealing fact about the Senator, a fact whose significance Toobin seemed to have missed. Toobin quotes Specter as saying,

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

Trouble is, the final version of the Military Commissions Act — the one the President signed — doesn't have a severability provision, although some earlier versions did. In theory, that usually means that the bill stands or falls as a whole — if one part of the bill is unconstitutional, the whole bill is void. (There are exceptions, for when the courts find Congress couldn't have intended that.)

So my colleague Steve Vladeck and I wrote the New Yorker a letter.

To the Editor:

In Jeffrey Toobin's marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act.

In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability.

We draw some comfort from this observation, although not from the apparent failure of one of the bill's coauthors to understand what he was voting for.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor

The New Yorker just published it, in a version that keeps the essential point but edited all the cute out of it:

Toobin's profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor
University of Miami School of Law
Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they'd have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…

Posted in The Media, Torture | 14 Comments

Wouldn’t the KGB Be Proud of John Ashcroft?

In what way, other than (thank goodness) the size of the prison population, is it wrong to call the incarceration and intentional breaking of Jose Padilla an American Gulag?

So far, I can think of only one other: that eventually — far too late? — the courts probably would have forced his release into the general prison population, and the fear of this outcome forced the government’s hand. But by then the damage seems to have been done.

Perhaps that’s enough for the long run. But perhaps not.

And, by the way, that case isn’t looking so great, is it?

Posted in Padilla | 2 Comments

Accountability, What a Concept

Advertisement seen on Washington DC Metro:

Posted in Politics: US: GW Bush Scandals | 3 Comments

We Make An Offer

You can’t keep anything from Brian Leiter.

Posted in U.Miami | Comments Off on We Make An Offer