Federal judge strikes down NDAA indefinite detention

Federal judge Katherine Forrest of the Southern District of New York provided a tremendous, though rare, victory for those who believe in basic civil liberties, which have taken a massive beating in the context of the alleged "war on terror." Amy Goodman and her guests (Chris Hedges, a journalist who filed the suit challenging the NDAA along with six others, and Bruce Afran, the group’s attorney) offer insight into the ruling:

In a rare move, a federal judge has struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial — including U.S. citizens. Judge Katherine Forrest of the Southern District of New York ruled the indefinite detention provision of the National Defense Authorization Act likely violates the First and Fifth Amendments of U.S. citizens. . . . "This is another window into ... the steady assault against civil liberties," Hedges says. "What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law."

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Behind the scenes regarding Citizens United

The New Yorker offers a detailed behind the scenes look of the final decision of Citizens United. In this article, Jeffrey Toobin credits Chief Justice John Roberts with the way the Court analyzed and ruled on the case:

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

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Businesses souring on arbitration

The website Arbitration Nation has reported on the cognitive dissonance experienced by businesses when it comes to arbitration of commercial disputes. Based on a new survey, only 60% of companies arbitrated commercial disputes in 2011, compared to 85% in 1997. Why aren't businesses clamoring to arbitrate their disputes with other businesses?

The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration. The study, conducted through Cornell’s Survey Research Institute, was co-sponsored by Pepperdine’s Straus Institute for Dispute Resolution, Cornell University, and the International Institute for Conflict Prevention & Resolution (CPR). (Its results are not currently available on-line.)
Arbitration Nation noted that while businesses are increasingly avoiding arbitration, the United States Supreme Court is making it more making it increasingly difficult to avoid the application of harsh arbitration contracts. Of course, most of the new court holdings enforcing pre-dispute mandatory arbitration clauses victimize non-businesses, such as consumers, employees and victims of civil rights abuses. Arbitration Nation links to a new article by Thomas Stipanowich that proposes a rating and ranking system for arbitration processes. We already have ample evidence exempt these group from mandatory arbitration. It is palpably clear that big businesses are using mandatory arbitration to take advantage of consumers, employees and victims of civil rights abuses, using their disparate bargaining power. They are using "arbitration" as a method of gaining immunity for their illegal actions. They are doing this, even as they vote with their feet that they don't like arbitration for themselves. Instead of gathering more data, we completely carve out consumers, employees and civil rights plaintiffs from being required to arbitrate. Sure, give them the option of arbitrating a case, but only after a dispute has arisen; never force them into mandatory, binding, pre-dispute arbitration. What I have just described is the approach of the Arbitration Fairness Act.

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John Yoo is immune from civil suits based on torture invited by his memos

John Yoo, the Bush attorney who authored memos authorizing torture is immune from civil lawsuit invited by his memos, based on a recent ruling by the 9th Circuit Court of Appeals. This ruling is unsurprising, in that it comports with a disturbing trend. Glenn Greenwald explains: [C]onsider these two facts:

(1) not a single War on Terror victim — not one — has been permitted to sue for damages in an American court over what was done to them, even when everyone admits they were completely innocent, even when they were subjected to the most brutal torture, and even when the judiciary of other countries permitted their lawsuits to proceed; and, (2) not a single government official — not one — has been held legally accountable, either criminally or even civilly, for any War on Terror crimes or abuses; perversely, the only government officials to pay any price were the ones who blew the whistle on those crimes. That is how history will record the behavior of American federal judges in the face of the post-9/11 onslaught of anti-Muslim persecution and relentless erosions of core rights.
The trend is further supported by a recent report that out of almost 1800 FISA requests (most for eavesdropping) filed by the federal government in 2011, none of them were denied. This statistic begs for the following commentary by Greenwald:
This is a perfect expression of how the federal judiciary, in general, behaves in the face of claims of National Security from the Executive Branch: as an impotent, eager rubber-stamping servant.

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Federal judiciary unmoved by CIA blatant misconduct

Glenn Greenwald has documented more CIA abuse, this time with a nod of approval by the federal courts:

In November, 2010, the Obama DOJ — consistent with its steadfast shielding of Bush-era criminals from all forms of accountability — announced that the investigation would be closed without any charges being filed. Needless to say — given how subservient federal judges are to the Executive Branch in the post-9/11 era — the federal judge who had ordered the CIA to preserve and produce any such videotapes, Alvin Hellerstein, refused even to hold the CIA in contempt for deliberately disregarding his own order. Instead, Hellerstein — who, like so many federal judges, spent his whole career before joining the bench as a partner for decades in a large corporate law firm serving institutional power — reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA “should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.” In other words, as I put it in a Guardian Op-Ed about Hellerstein’s CIA-protecting decision: the CIA has promised not to do this again, so they shouldn’t be punished for the crimes they committed.
The story gets much worse, as Greenwald describes how Jose Rodriguez, is now gloating about how he destroyed the these torture videos. He is doing this with the view, apparently correct, that no law enforcement authority and no court is going to do anything about any of his misconduct.

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