Holder In; Two Others Out

Despite being the point man for the Clinton administration's controversial pardons (including the 16 FALN terrorists), the Senate confirmed Eric Holder as Attorney General by a vote of 75 to 21. However, two other high-level nominees, Nancy Killefer and Tom Daschle, withdrew their nominations over failure to pay income taxes. It's still hard to fathom how the Senate could confirm tax scofflaw Tim Geithner as of all things Treasury Secretary and head of the IRS.

Controversial Rendition Program Still in Place?

The LA Times provides an interesting follow-up to the hoopla surrounding Obama's recent flurry of executive orders.

The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

Military Trial Going Forward

A U.S. Army judge, in effect, has told the administration, "Yes, We Can!"

A military judge threw a wrench [Thursday] into the Obama administration's plan to suspend legal proceedings at Guantanamo Bay, denying the government's request to delay the case of a detainee accused of planning the 2000 attack on the USS Cole.

To halt proceedings for 120 days -- as Obama wants in order to conduct a review -- the Pentagon may be forced to temporarily withdraw charges against Abd al-Rahim al-Nashiri and possibly 20 other detainees facing trial in military commissions, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks.

The administration, which expected military judges to agree to its motions seeking suspension, was taken aback by yesterday's decision. Judges in other cases, including one involving five Sept. 11 defendants, had quickly agreed to the government's request.

Col. James Pohl, the chief judge in Gitmo, said the administration's arguments to delay the scheduled arraignment of Nashiri were "unpersuasive," and would deny the public's interest in a speedy trial. Click here and here for the full story.

Pay Discrimination Bill Becomes Law

Ever have a boss who was impossible to deal with? Okay, that's a rhetorical question. There's no question that in general employers can and will treat employees in an unfair, arbitrary, stingy, and irrational manner. We have first-hand knowledge of hard-working, conscientious employees who got a raw deal. Sometimes the unfairness rises to the level of illegal discrimination, but often--for better or worse--it doesn't. Falling short of an actual labor-law violation never justifies an employer's bad acts, but it just means that there is no remedy to be found in the courthouse. At the same time, let's face it; there are employees who are clearly working the system, at the expense of those workers legitimately wronged.

Today, the president signed a bill known as the Lilly Ledbetter Fair Pay Act of 2009--a huge bonanza to the trial lawyers and a recordkeeping nightmare for employers--that overrules a May 2007 U.S. Supreme Court ruling that said that workers had to file equal pay lawsuits within 180 days. Ledbetter, the plaintiff/appellant in that case, worked at Goodyear's Gadsden, Alabama, plant from 1979 until 1998 when she took early retirement.

Under this newly signed legislation which the Obama's Congressional allies fast tracked to the president's desk, each new allegedly discriminatory paycheck extends the statute of limitations for a second 180 days. In other words, the measure will make it easier for workers to file claims for pay bias. But as a practical matter, extending the deadline seems to undermine the whole idea of having a statue of limitations of any kind. The full text of the bill can be found here.

If a particular legal deadline is legitimately unfair to workers who are really harmed (rather than just based on political posturing), why not consider some flexibility if it makes sense? But is this new law based on a faulty premise?

Karen Lee Torre suggests in the Connecticut Law Tribune that Lilly Ledbetter herself--who palled around with Obama on the campaign trail--appears to lack "clean hands," as they say in legal jargon:

As a plaintiff-side employment litigator, I am expected to join the chorus championing a congressional override of the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. The bill is a political scam. If Congress wants to amend Title VII and greatly expand the statute of limitations for employment discrimination claims, it is certainly within its authority to do that, the wisdom of it aside. But supporters of the Ledbetter bill have engaged in dishonest rhetoric in portraying her as a victim of both her employer and the Supreme Court justices who affirmed the Eleventh Circuit’s dismissal of her claims as time-barred….

I have represented many sex discrimination victims. I have won their cases. After 20 years of such efforts, I know a victim when I see one. Let me tell you something: Lilly Ledbetter is no victim...

Ledbetter waited until she retired to sue Goodyear for “discrimination” she allegedly suffered 12 years earlier. Goodyear, like many employers, awarded salary increases based on annual performance reviews. Ledbetter’s supervisor at the time of the alleged discrimination did not think much of her performance and she did not get a raise. (Nor did Ledbetter get a raise in the last two years of her employment – for the same reasons of weak performance, but notably she did not claim those decisions were discriminatory).

While she was working, Ledbetter never complained, filed no grievance, and Goodyear never knew that she thought that particular performance review was the product of gender bias. Way more than a decade later, after Ledbetter walked out the door with her retirement benefits, she hit Goodyear with a lawsuit, the basis of which was the claim that the initial poor reviews affected her salary for the rest of her tenure...

Here’s another fact ignored in the political rhetoric. Ledbetter, for unexplained reasons, abandoned an Equal Pay Act claim asserted in her suit. The Equal Pay Act does not contain Title VII’s filing limitations, nor does it require plaintiffs to prove intent. It was a much better claim, easier to prove, and it was timely.

The bill even allows family members and others "affected by application of a discriminatory compensation decision or other practice" to file claims, which could really open the floodgates.

Writing for the majority in the Ledbetter decision, Justice Alito cited various precedents in observing that:

Statutes of limitations serve a policy of repose...They “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’” The EEOC filing deadline “protect[s] employers from the burden of defending claims arising from employment decisions that are long past....” Certainly, the 180-day EEOC charging deadline...is short by any measure, but “[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination...." This short deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.

This bill, which amends Title VII of the U.S. Civil Rights Act, is the first piece of legislation signed by the new president, who was elected in part to straighten out the country's financial mess. We're not carrying water for management, but with a bad economy, high unemployment, and many companies teetering on the brink, should we really be subjecting more of them to never-ending litigation?

Update: Writing in the National Journal, Stuart Taylor says that the new law "seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire. This would be justified if job discrimination were indeed pervasive." Taylor's take on the law can be found here. And Hans Bader of OpenMarket.org describes the distorted media coverage of the Supreme Court decision.

Loopholes?

On Thursday, January 22, Pres. Obama signed several executive orders signaling an apparent change in policy for the war on terror, at least as most of the media is portraying it. The president signed an order shutting down the Guantanamo Bay detainee center supposedly within one year, and also acted to close all overseas CIA terrorist detention facilities, and ban harsh interrogation methods in favor of what is provided in the Army Field Manual. The president created a special task force to spend the next six months reviewing interrogation techniques. The new administration already has suspended detainee trials at Gitmo for 120 days pending a review of the military tribunals. The full text of these executive orders can be found here.

But is there more, and less, to all this? The Associated Press notes that...

A task force will study whether other interrogation guidelines — beyond what's spelled out in the Army manual — are necessary for intelligence professionals in dealing with terror suspects. But an Obama administration official said that provision should not be considered a loophole that will allow controversial "enhanced interrogation techniques" to be re-introduced. The official spoke on condition of anonymity to speak candidly about the administration's thinking.

Back in November, the Wall Street Journal reported the following: "Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight."

If these measures are based on sound public policy--good. If it is merely symbolism to curry favor with certain constituency groups and media opinion leaders, not so good. Keeping America safe should guide the administration's decisions, not symbolism or media hype.

As far as Gitmo is concerned, complicating matters is that no country has agreed to take these detainees off our hands, so the logistics of the shutdown--if at all--have yet to be worked out. And again, not everyone swept off the battlefield and jailed there is an innocent victim of circumstance. The day after Obama signed off on the executive order, the Associated Press reported the following:

A released Guantanamo Bay terror detainee has reemerged as an al-Qaida commander in Yemen, highlighting the dilemma facing President Barack Obama in shaping plans to close the detention facility and decide the fates of U.S. captives. A U.S. counterterror official confirmed Friday that Said Ali al-Shihri, who was jailed in Guantanamo for six years after his capture in Pakistan, has resurfaced as a leader of a Yemeni branch of al-Qaida.

And the AFP is reporting that two former Gitmo inmates have appeared in a video posted on a jihadist website.

Yet media coverage of all things Obama continues to be fawning. In a sense, this is consistent, since since Obama's candidacy was largely media created and driven. Given the events of the election cycle and the subsequent inaugural hoopla, has there even been a politician with such an extremely thin resume that benefited from this degree of unabashed media cheerleading? Former CBS newsman Bernard Goldberg, who just came out with a new book on this subject, said in an interview that "In my whole life I have never seen the media get on board for one candidate the way they did this time around and -- this is very important -- they did it without even a hint of embarrassment...The media who were on Obama's team, they didn't just put a thumb on the scale; this time they sat on the scale." A similar critique of media behavior is expressed here.

It is not a positive step for our democracy when the press engages in a wholly one-sided presentation. No candidate for high office, regardless of political party or ideology, should ever get a free ride. To suggest that the mainstream news media kept its objectivity and impartiality in the election campaign and its aftermath is like saying the referees in pro wrestling are on the level. But as someone said, in the 2008 election cycle, the Fourth Estate went into foreclosure, and not just because of the ongoing financial difficulties in America's newsrooms.

The former president received (and continues to receive) far different treatment in the press to say the least. And as the media postmortems of the Bush administration continue, it might be useful to review this 2006 special report from the Media Research Center about the mainstream media's war on terror coverage. Whether you agree or not with its premise, the report raises a host of interesting issues.

Oddly enough, apparently the Bush and Obama administrations have found some common ground on one contentious national security issue:

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants. In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

UPDATE: The Washington Times reported this "exclusive" on Wednesday, January 28:

President Obama's executive order closing CIA "black sites" contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad. The provision illustrates that the president's order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time. Current and former U.S. officials, who spoke on the condition that they aren't identified because of the sensitivity of the subject, said such temporary facilities around the world will remain open, giving the administration the opportunity to seize and hold assumed terrorists.

New Homeland Security Leadership

Janet Napolitano, the former Arizona governor, was sworn in as the new Homeland Security Secretary on January 21. The new administration's homeland security strategy can be found here. Given Napolitano's prior record on border security, it remains to be seen what policies will actually go into implementation. Bloomberg provided this account of her January 15 confirmation hearing.

Homeland Security and the Inaugural

Homeland Security Chief Michael Chertoff told CNN that Tuesday's presidential inauguration is the "largest and most complex security event in history."

An estimated 8,000 police officers will be on duty, along with almost a thousand FBI personnel, Transportation Security Administration screeners and others, including 10,000 National Guard troops. Chertoff said that another 20,000 members of the National Guard are being held in reserve.

Numerous press reports indicate that the Obama inauguration will be the most expensive in history predicted to reach over $150 million, far more than the $42.3 million spent on George Bush's inauguration in 2005, and the $33m spent on Bill Clinton's in 1993. In fact, President Bush has put the District of Columbia under a state of emergency to allow it access more federal money for inauguration-related security and transportation costs. Let's hope everything goes smoothly, but with the economy in the tank and workers losing their jobs right and left, does it at all seem like the amount of cash spent on inaugural activities and parties (whether the source is the public or private sector) is excessive? Four years ago, some lawmakers and various mainstream media outlets felt that the Bush inaugural was money not well spent. But apparently that was then, and this is now.

Despite the bleak economy, however, Democrats who called on President George W. Bush to be frugal four years ago are issuing no such demands now that an inaugural weekend of rock concerts and star-studded parties has begun....Four years later, the nation is still at war. Unemployment has risen sharply. And Obama pressed Congress to release the second half of a $700 billion bailout package in hopes of rescuing a faltering banking industry.

A history professor who has studied presidential inaugurations says "The Founding Fathers wanted very much for it to be a dignified occasion and to avoid any smack of royalty or coronation, but it's gradually become more lavish. People think whatever goes on now goes way back, but there's nothing permanent about it."