Tag Archives: courts

Shell predicted it would get sued over climate change back in ’98.

Now, those lawsuits are here, and that prediction could bite the multinational oil company in the ass.

A treasure trove of documents released Thursday provide new evidence that Shell, like Exxon, has been gaslighting the public for decades. The documents, dating as far back as 1988, foretold “violent and damaging storms,” and said that “it would be tempting for society to wait until then before doing anything.”

At that point, the documents predicted, “a coalition of environmental NGOs brings a class-action suit against the U.S. government and fossil-fuel companies on the grounds of neglecting what scientists (including their own) have been saying for years: that something must be done.” Sound familiar?

When the scientific community began warning that the world could go down in fossil-fueled flames, Shell tried to convince them to take a chill pill, derailing global efforts to curb climate change.

And it gets shadier: This whole time, Shell has known exactly how culpable it is for a warming planet. By the mid ’80s, it had calculated that it was responsible for 4 percent of global carbon emissions.

That means San Francisco, Oakland, and New York now have more ammo for their lawsuits against Shell. The biggest hurdle to their cases wasn’t proving that climate change is a thing — even Big Oil’s lawyers can’t argue that anymore — but that fossil fuel companies can be held legally liable for the damages caused by climate change.

Shell just made that a lot easier.


Shell predicted it would get sued over climate change back in ’98.

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Senate Republicans Are Blocking Obama’s Judges at a Nearly Unprecedented Rate

Mother Jones

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Gridlock has famously prevented Congress from enacting meaningful legislation in recent years, but it’s in another area that congressional inaction is truly setting new records. The Senate has confirmed just nine judges nominated by President Obama so far this year. It’s the slowest pace of confirmations in more than half a century, on track to match the 11 confirmations in 1960.

“It’s still like pulling teeth to move nominations,” says a senior Democratic Senate aide. “They’re being held by a number of different Republican senators for every reason under the sun. None of which have anything to do with the actual qualifications of the nominees.”

With Republicans in charge of both branches of Congress, odds are slim that Obama will sign major domestic legislation during the last two years of his presidency. Even keeping the government’s lights on and selecting a new House speaker have required protracted fights in this dysfunctional Congress. But judges are still one area where a hamstrung president can leave a mark, as district and circuit court judges who win confirmation receive a lifetime appointment.

It’s not unusual for a president to get fewer nominations through the Senate as the end of a White House term nears and the opposition party begins to dream of winning the next presidential election and tapping the judges it prefers. But the current rate is far off from the historical norm. According to the liberal Alliance for Justice, by this point in 2007, when Democrats controlled the Senate, 34 of President George W. Bush’s judges had been confirmed.

The lack of confirmations has provoked anger among Senate Democrats over what they see as politicking at the expense of a functional judicial system. Last week, Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee, put a statement in the congressional record blasting Republicans for dragging their feet on scheduling votes for uncontroversial judicial nominees. “The glacial pace in which Republicans are currently confirming uncontroversial judicial nominees is a failure to carry out the Senate’s constitutional duty of providing advice and consent,” Leahy said. “We should be responding to the needs of our Federal judiciary so that when hardworking Americans seek justice, they do not encounter the lengthy delays that they currently face today.”

This summer, Sen. Chuck Schumer, a New York Democrat on the committee, got in a public tussle on the Senate floor with its Republican chairman, Sen. Chuck Grassley of Iowa. After Schumer’s request for unanimous consent to approve a slate of judicial nominations for New York courts was denied, Schumer called the Republican slowdown a “disgrace” that was hurting the judicial system. “Democrats will not stand by and watch our judicial system brought to its knees by death by a thousand cuts,” he said. Grassley, though, would have none of it. He argued that Republicans didn’t need to rush confirmations after Democrats approved 11 nominees in the 2014 lame-duck session, when Democrats were about to lose the Senate majority following the November midterm elections. “So put that in your pipe and smoke it, the senator from New York,” Grassley said.

Republicans have been gumming up the works at each step of the process. Judicial nominations are generally put forward by the president only once they’ve been approved by both of the home-state senators. Republicans have been slow to give their consent to any nominee, with 55 judicial vacancies currently lacking a nomination. “If you look where these empty seats are, they’re almost all in states with at least one Republican senator,” says the Alliance for Justice’s Kyle Barry. Even when Republican senators appears to support a nominee, they’ve dragged out the process. Sen. Marco Rubio, for example, recommended Mary Flores to the White House for a spot on a Florida district court, but has been withholding his so-called “blue slip” approval form, preventing her from moving forward to a hearing before the Judiciary Committee. (He says he is still reviewing her qualifications.)

Even after a judicial nominee has cleared the Judiciary Committee with bipartisan support, Senate Majority Leader Mitch McConnell has been slow about scheduling votes on the Senate floor, where 11 nominees are awaiting confirmation. The delays generally haven’t been due to controversy about the nominees. The last two judges confirmed, for district court seats in New York, were approved by votes of 95-2 and 88-0, respectively.

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Senate Republicans Are Blocking Obama’s Judges at a Nearly Unprecedented Rate

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Here’s What You Need to Know About the Supreme Court’s Big Abortion Ruling

Mother Jones

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On Thursday, the Supreme Court unanimously ruled that a Massachusetts law creating a 35-foot buffer zone around abortion clinics in which protest was forbidden is a violation of the First Amendment. Chief Justice John Roberts wrote the opinion, which held that the law was unconstitutional because it blocked peaceful protest on public streets.

The ruling will make it difficult for states to justify laws that establish buffer zones for abortion clinics. In cases where anti-abortion protesters obstruct access to clinics, the court says, states must pursue alternatives, such as court orders to limit protest. A problem with access to a clinic, for example, “could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police.” Only if those narrower measures fail and a state compiles a long record of problems caused by clinic protests, can the state generally bar clinic protest.

Three states, Massachusetts, Montana, and Colorado, have buffer zone laws on the books. The case, McCullen v. Coakley, was brought by a grandmotherly anti-abortion “sidewalk counselor” named Eleanor McCullen, who argued that the zone violated her First Amendment right to peacefully protest. Massachusetts countered that the law protected a competing right protected by the constitution: the right to obtain an abortion—which prior to the establishment of buffer zones, clinic protesters had endangered through threats, harassment, and physical hindrance.

The court agreed that buffer zones impeded the rights of McCullen and others who wish to “engage in personal, caring, consensual conver­sations with women about various alternatives.”

The fate of a 2000 Supreme Court ruling that permitted states to enact small “floating buffer zones” around people who are entering or leaving abortion clinics is not clear. The Court did not address that case, Hill v. Colorado, in this opinion. But the validity of floating buffer zones now seems in question, according to SCOTUSblog‘s Tom Goldstein. Floating buffer zones have been difficult to enforce, and abortion rights advocates have argued that they provide scant protection from violent protesters.

Here’s more background on the case:
In order for Massachusetts’s buffer zone law to survive a First Amendment challenge, lawyers for the state had to prove that the legislature had a compelling reason to limit speech, that the law wasn’t aimed at suppressing ideas, and that the law didn’t restrain speech more than necessary.

The Supreme Court agreed with Massachusetts that the state had a compelling interest and that the law didn’t target specific ideas. However, Roberts wrote, “The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”

The Supreme Court’s decision partially hinged on how serious of a threat protesters posed to abortions rights.

In its argument to the court, Massachusetts noted that it has a history of violent protests at clinics. The state created buffer zones in 2000 in reaction to the 1996 murders of two abortion clinic workers. But the law was also a response to routine protests outside clinics in Boston, Worcester, and Springfield, where activists threatened women and physically barred them from entering the clinic. Here is a vivid, but typical example from a clinic worker who testified before the Massachusetts Legislature in 1999 about witnessing a particular protest:

A woman in her mid-20s and her elderly grandfather…were trapped inside the cab for several minutes…Two escorts were able to make their way to the woman’s side as she ran crying into the clinic. Her grandfather, who walked with a cane, was unable to run…In the amount of time it took him to walk from the cab to the clinic entrance, he was shoved and almost fell down twice. He was also forced to endure various insults about his race and remarks about how his handicap was a punishment from God.

Other clinic staff testified that protesters blocked them from going to work, pressed a clinic escort up against a car, and pushed a clinic worker into a moving car.

The Supreme Court issued its guidelines for buffer zones in Hill v. Colorado in 2000, the same year Massachusetts passed its law. Following the court’s lead, Massachusetts created six-foot “floating buffer zones” around any person within 18 feet of an abortion clinic’s entrance or exit. Protesters were still allowed to stand next to a clinic’s doors, and they could approach within six feet of a person with that person’s consent.

The floating buffer zone law proved impossible to enforce. It was unclear to police what constituted an approach, and some protesters interpreted eye contact as consent to approach women and scream in their faces. In 2007, Captain William Evans of the Boston Police Department testified to the Legislature that his officers had probably arrested no more than five protesters in seven years (most for violating laws other than the buffer zone) despite the fact that protesters probably violated the law almost every weekâ&#128;&#139;end.

So that year, Massachusetts abandoned the floating buffer zones sanctioned by the Supreme Court, and established a more ambitious, hard buffer zone of 35 feet surrounding an abortion clinic’s entrance, exit, or driveway.

In oral arguments before the court in January, Mark Rienzi, the attorney for McCullen, dismissed incidents of violence and aggression at abortion clinics as the work of a few bad actors. He focused on McCullen, who plasters her refrigerator with baby photos she says she has received from women she talked out of having abortions.

This tactic worked. Roberts noted, “The record indicates that the problems are limited principally to the Boston clinic on Saturday mornings, and the police there appear perfectly capable of singling out lawbreakers. The petition­ers are not protestors; they seek not merely to express their opposition to abortion,” but to counsel women. “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vocifer­ous opponents of abortion, then the buffer zones have effectively sti­fled petitioners’ message.”

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Supreme Court Abortion Clinic Buffer Zone Decision (PDF)

Supreme Court Abortion Clinic Buffer Zone Decision (Text)

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Here’s What You Need to Know About the Supreme Court’s Big Abortion Ruling

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Supreme Court Rules That Even a Sham Recess is Still a Recess

Mother Jones

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See? If you take President Obama to court over an issue of executive overreach, you might win:

The Supreme Court on Wednesday limited the president’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.

The court’s first-ever case involving the Constitution’s recess appointments clause ended in a unanimous decision holding that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal.

Republicans had argued that the Senate wasn’t really in recess when Obama made those appointments. Obama argued that, in practice, the Senate was indeed in recess, and simply gaveling open a few pro forma “sessions” during the break didn’t change that. In this case, the justices decided to go with the letter of the law, and Obama lost.

This result doesn’t bother me much. I actually agree with Obama that these pro forma sessions are shams, but sometimes the law allows you to get away with technicalities like this. In any case, it’s good that we have a definitive ruling here.

On the other hand, the related ruling on a tea party hobbyhorse—that virtually all recess appointments are illegal anyway because the only real recess is the annual end-of-year break—is more problematic. This one struck me as completely ridiculous and contrary to 200 years of precedent, but the court rejected it only by a 5-4 margin. That’s four votes for an entirely invented bit of nonsense, and that’s not a good sign.

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Supreme Court Rules That Even a Sham Recess is Still a Recess

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Supreme Court: Aereo Looks Just Like Cable TV, So It Has to Follow the Same Laws as Cable TV

Mother Jones

I’ve been reading the Supreme Court’s opinion in the Aereo case, and it’s kind of fascinating. As you may know, Aereo is a company that installs thousands of tiny antennnas in a warehouse and then lets users “rent” one of the antennas, as well as some storage space. Users connect to their antenna via the internet, and can either watch broadcast TV in real time or set up times for shows to be recorded.

Broadcast networks claim that Aereo is retransmitting their content to the public, which is a violation of copyright law. Aereo, naturally, disagrees. The court’s decision appears to hinge on a single key question: can Aereo be said to be an active infringer when it’s merely a passive conduit for users, who are the ones who choose what to watch and record?

The majority said yes, because Aereo is essentially just like a cable TV operator, and the Copyright Act of 1976 specifically says that cable TV operators are retransmitting content. Antonin Scalia, writing in dissent, calls this specious:

The Court’s reasoning fails on its own terms because there are material differences between the cable systems at issue in Teleprompter and other decisions on the one hand and Aereo on the other. The former (which were then known as community-antenna television systems) captured the full range of broadcast signals and forwarded them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times selected by the user. The Court acknowledges this distinction but blithely concludes that it “does not make a critical difference.”

….Even if that were true, the Court fails to account for other salient differences between the two technologies….At the time of our Teleprompter decision, cable companies “performed the same functions as ‘broadcasters’ by deliberately selecting and importing distant signals, originating programs, and selling commercials,”, thus making them curators of content—more akin to video-on-demand services than copy shops. So far as the record reveals, Aereo does none of those things.

The key distinction here is that Aereo doesn’t actively “curate” its content or retransmit everything at all times. It just makes everything available and users then choose what to watch. “Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots.”

I can’t say that I find this very persuasive. For one thing, cable operators don’t forward everything to all subscribers at all times. You have to turn on your cable box and then set your tuner to pick up a particular station. More substantively, I suppose it’s true that there are bits and pieces of broadcast television that are in the public domain, but come on. Virtually everything Aereo makes available is copyrighted material and they know it. Scalia says Aereo is a lot like a copy shop, which isn’t held liable for the occasional customer who infringes copyright because, in practice, most of their customers aren’t infringing. But if a shop ran a service where they copied entire books from their library, they’d be held liable—even if a few of their books were in the public domain and even if their users had to physically press a button to start up the copying process.

In any case, as near as I can tell this case is based almost entirely on extremely fine points like this. Is Aereo essentially the same as a cable TV operator, and thus something that Congress intended to regulate in the Copyright Act of 1976? Can Aereo be held liable for infringement even though it’s users who make the decisions about what to watch and what to record? Are Aereo’s transmissions “public” even though each individual antenna is rented out to only a single individual person?

I could have seen this case going either way, but in the end the majority decided the case based on their conclusions about (a) the intent of Congress and (b) whether Aereo is so similar to a cable TV operator that it falls under the same laws. In the end, they decided that if it looks like a duck and quacks like a duck, it’s a duck. And Aereo lost.

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Supreme Court: Aereo Looks Just Like Cable TV, So It Has to Follow the Same Laws as Cable TV

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Supreme Court Unanimously Supports Common Sense in Cell Phone Search Case

Mother Jones

The latest from the Supreme Court:

Police may not search the smartphones of people who are put under arrest unless they have a warrant, the Supreme Court has ruled, a unanimous and surprising victory for privacy advocates.

The justices, ruling in cases from California and Massachusetts, said the 4th Amendment’s ban on “unreasonable searches and seizures” prevents a police officer from examining a cellphone found on or near a person who is arrested.

See? I told you the Supreme Court was a remarkably agreeable place. And in this case, they were remarkably agreeable even though lower courts had split on this issue and it could easily have broken down along normal left (yay civil liberties!) and right (yay law enforcement!) lines. Instead, all nine of the justices did the right thing. For a brief moment, we can all celebrate.

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Supreme Court Unanimously Supports Common Sense in Cell Phone Search Case

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Sorry, Conservatives. The Supreme Court Isn’t Stopping Obama’s Climate Plan.

Mother Jones

“Supreme Court Limits EPA’s Global Warming Rules.”

Supreme Court Ruling Backs Most EPA Emission Controls.”

These are just a couple of the many contradictory headlines in response to Monday’s US Supreme Court ruling in Utility Air Regulatory Group v. EPA, a case filed by industry groups and several states challenging some of the environmental agency’s efforts to restrict greenhouse gas emissions. So what’s going on here?

Despite some applauding headlines from the right—”Supreme Court Hits Obama’s Global Warming Agenda,” claimed the Washington Times—the ruling actually had very little effect. “This is not doing much of anything to hobble EPA,” explains Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, adding: “Nothing that is being done today calls into question the EPA’s ability to regulate power plants, both new and existing, under section 111 of the Clean Air Act.”

The decision, authored by Antonin Scalia, is actually the latest in a series of rulings by the Supreme Court on the ability of the EPA to regulate greenhouse gas emissions. The most important of these, 2007’s Massachusetts v. EPA, found that the agency had the authority to regulate these emissions under the Clean Air Act. In 2011, the court went further in American Electric Power v. Connecticut, ruling that states, cities, and other entities could not independently sue greenhouse gas emitters because the Clean Air Act and the EPA “displace” their ability to do so. It’s on the basis of such rulings that President Obama’s EPA has stepped forward to regulate greenhouse gas emissions from a variety of sources, including automobiles, newly constructed power plants, and, most recently, existing or older power plants.

Headlines notwithstanding, those regulatory actions weren’t really at issue in Monday’s decision. Rather, the latest case involved something called the EPA’s Prevention of Significant Deterioration (PSD) program, which issues permits for major new sources of air pollution, or for higher levels of emissions from existing sources. Permitted emitters are required to use the best technology available to mitigate their emissions.

As part of the EPA’s initiatives to combat global warming, the agency had tried to “tailor” this preexisting program, which covered other pollutants, to apply to large greenhouse gas emitters, while simultaneously ruling out smaller emitters like hospitals. Industry groups and some states sued in objection. The Supreme Court ruled that the EPA can’t target emitters based on their greenhouse gases under this program, but the court also said the agency can require major emitters already permitted under the PSD program for other types of emissions to curtail their greenhouse gas emissions, too. And by these lights, the EPA can still regulate 83 percent of all stationary sources of these emissions.

So we certainly shouldn’t be worried that the EPA can’t go forward on regulating greenhouse gases now, explains Sierra Club attorney Pat Gallagher. “There’s a slight ding in their program,” Gallagher says. But as he adds, “you’re still capturing most facilities, like 83 percent of the facilities.”

So, don’t freak out. The EPA is still taking major action on global warming. The latest Supreme Court ruling is no catastrophe. The fact that the court is tweaking such minor details in a sense affirms that the EPA’s broad approach to global warming is on track.

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Sorry, Conservatives. The Supreme Court Isn’t Stopping Obama’s Climate Plan.

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Supreme Court Strikes Down EPA Interpretation of Clean Air Act

Mother Jones

A few years ago, the EPA added carbon dioxide to an established program that limits emissions of harmful pollutants. But there was a problem: the Clean Air Act says that permits are required by any source that emits more than 250 tons of a covered pollutant. Because CO2 is such a common gas, this would have forced tens of thousands of small sources to go through an expensive and pointless permitting process, something EPA wanted to avoid. So, for CO2 only, they unilaterally changed the threshold to 100,000 tons per year. This exempted most large businesses, but it also gave critics an opening to challenge the law. Today they won:

The Supreme Court, in a split ruling, has blocked the Obama administration from requiring special permits for some new power plants, but upheld them for others. In a dense 5-4 decision Monday, the justices said the Environmental Protection Agency had wrongly stretched an anti-pollution provision of the Clean Air Act to cover carbon emissions in new or modified plants.

But the ruling was confined to only one regulatory provision, and it is not likely to directly affect the broader climate-change policy that the administration announced earlier this month. That policy relies on a different part of the law that says states must take steps to reduce harmful air pollutants, which include greenhouse gases.

This doesn’t affect the EPA’s recent proposal that would limit CO2 emissions from power plants, since that relies on a different provision of the Clean Air Act that’s already been blessed by the Supreme Court. However, today’s ruling is a demonstration of something I’ve mentioned before: When an executive agency modifies the way it interprets a law, it’s a fairly routine affair. Interpretations of federal statutes, especially complex regulatory constructions, are notoriously difficult, and agencies do it all the time. There’s no presidential “lawlessness” or “tyranny” involved, and disputes over these interpretations are routinely resolved by courts. In this case, it was obviously a close call, since the decision was 5-4 and the opinion was long and dense.

This is what’s likely to happen in other cases where the Obama administration has interpreted a law in ways that his critics don’t like. If the critics are serious, they’ll go to court, and in some cases they’ll win. In others, they’ll lose. Welcome to the 21st century.

UPDATE: I wrote this hastily because—and I know you’re going to love this excuse—a temporary crown fell out and I had to pop out to my dentist to get it re-cemented. But now that I’m back, it’s worth pointing out that today’s Supreme Court decision actually upheld most of the EPA’s new limitations on CO2 emissions. The main reason I highlighted the one piece they struck down was because I wanted to make a point about presidential “lawlessness” that’s become such a talking point on the right these days. In the case of the 250-ton rule, the EPA tried to reinterpret the law and the court ruled against them. Other interpretations were upheld. That’s the way this stuff goes.

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Supreme Court Strikes Down EPA Interpretation of Clean Air Act

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"Extremely Troubling" Documents Show How Obama Administration Embraced Foreign Detention of Terror Suspects

Mother Jones

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What happens when an FBI agent steps into a foreign prison to interrogate a US citizen? For several years, even as the FBI has cooperated with foreign governments to question Americans locked up in countries such as Kuwait, South Sudan, and Yemen, the Obama administration has been tight-lipped about the rules that govern such interrogations. FBI officials have told Congress that the same rules apply when FBI agents interview suspects at home and overseas. But an internal bureau interrogation manual suggests that the truth is more complicated—and new information from the FBI shows that key edits were made to the manual as the Obama administration shifted away from the Bush-era practice of questioning terrorism suspects at Pentagon- or CIA-run facilities, and toward outsourcing detentions to foreign regimes.

The FBI acknowledges that information it shares with foreign countries sometimes leads to the arrest of people the FBI is interested in, including Americans, and that its agents sometimes interview these suspects. This controversial practice, often called proxy detention, has been denounced by human rights advocates who say it circumvents suspects’ constitutional rights. But it took a lawsuit from the ACLU to force the Obama administration to disclose a manual that offers advice to FBI agents conducting these interviews.

When the manual, titled “Cross-Cultural, Rapport-Based Interrogation” was released in 2012, the sections that dealt with proxy detention were heavily redacted. The FBI’s page-and-a-half of “recommended practices” for conducting interviews of suspects in foreign custody was entirely redacted:


Another section, titled “Conducting Custodial Law Enforcement Interviews Overseas,” was also heavily censored:


Then, in December, I broke the story of a bizarre FBI mistake: In 2010, a top agent at the bureau, thinking (incorrectly) that he could copyright the manual, deposited an unredacted version at the Library of Congress, where anyone could read it. But the tale gets even stranger.

More MoJo reporting on proxy detention

Locked Up Abroadâ&#128;&#148;for the FBI

Obama Administration Interrogating Terror Suspects Locked Up Abroad (Again)

Document Shows US Government Knew About American Locked Up in Yemen

American Muslim Alleges FBI Had a Hand in His Torture (Updated with Video)

US Charges Yonas Fikre, American Who Claimed Torture, With Conspiracy

READ: Letter to Justice Department About Alleged Proxy Detainee Yonas Fikre

Obama Administration Sued Over “Proxy Detention”

The interrogation manual deposited at the Library of Congress was labeled “Version 3” and dated August 18, 2008, just a few months before President George W. Bush left office. A side-by-side comparison showed that the section dealing with proxy detentions had changed dramatically between this Bush-era version and the 2011 one released to the ACLU.

The Bush-era section focused on interviews in Defense Department facilities in Iraq and Afghanistan—not suspects held by foreign governments. It was titled “Conducting Custodial Law Enforcement Interviews in Combat Zones,”—minus the word “Overseas,” with its broader meaning. And the page-and-a-half on “recommended practices” that was entirely redacted in the 2011 version wasn’t in this version of the manual at all.

So when were the changes made? Recently, an FBI spokesman got me an answer. He said the tweaks came “around late 2010,”—well into the Obama administration—and “were mainly based on additional experiences gained overseas along with additional research on the subject matter.”

Michael German, a former FBI agent who is now a fellow at the Brennan Center for Law and Justice at New York University, says it is “extremely troubling” that it took the ACLU to uncover the manual, and that “these rules seem to expand without notice or public discussion. It is clear evidence there are insufficient internal or external controls on the FBI.”

In recent years, the Obama administration has continued to shift away from unilateral measures such as drone strikes, and toward working with foreign allies through means like proxy detention. Publicly disclosed funding to train and equip foreign militaries to fight terrorism has increased from $218.6 million in 2012 to a requested $290.2 million in 2014, and defense officials recently told The Hill that the government’s secret counterterrorism budget now has less money going to Afghanistan and more going to North Africa and the Middle East. Data collected by Long War Journal show that drone strikes in Pakistan peaked in 2010 and have declined every year since; similar data for Yemen show a peak in 2012 and a decline in the years since.

For more on what the FBI’s work with American citizens overseas can look like in practice, check out my recent investigation in the May/June issue of Mother Jones.

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"Extremely Troubling" Documents Show How Obama Administration Embraced Foreign Detention of Terror Suspects

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Will Rick Perry Execute A Mentally Disabled Man Tonight?

Mother Jones

Update (5:24 pm): The Fifth Circuit Court of Appeals has stayed Robert Campbell’s execution on the grounds that the new evidence of his intellectual disability was “more than sufficient” to warrant a closer look by the courts. His lawyer, Robert C. Owen, said in a statement, “Given the state’s own role in creating the regrettable circumstances that led to the Fifth Circuit’s decision today, the time is right for the State of Texas to let go of its efforts to execute Mr. Campbell, and resolve this case by reducing his sentence to life imprisonment. State officials should choose the path of resolution rather than pursuing months or years of further proceedings.

Texas Gov. Rick Perry (R) has presided over more executions than any other governor in American history. He’s ignored pleas for clemency for people who committed crimes as juveniles, who were mentally disabled, or who were obvious victims of systemic racism. He even signed off on the execution of a likely innocent man. So the odds don’t seem good for Robert Campbell, a man set to be executed in Texas tonight. This is despite the fact that new evidence has surfaced showing that the state withheld information documenting an intellectual disability that should make him ineligible for the death penalty.

Meet Six Texans Who Were Executed or Condemned Despite Profound Mental Illness

Unlike Clayton Lockett, the Oklahoma murderer whose botched execution last month has become a rallying cry for abolishing the death penalty, Campbell is actually something of a poster child for all that’s wrong with capital punishment in this country.

Four months after his 18th birthday, Campbell commit three armed car jackings. In one of those, a 20-year-old bank employee, Alexandra Rendon, was kidnapped at a gas station, sexually assaulted and shot to death. Campbell was quickly arrested, largely because he drove Rendon’s car around his neighborhood, gave her coat to his mother and her jewelry to his girlfriend as gifts, and basically blabbed to everyone that he’d been involved in the crime. He wasn’t alone during the commission of the crime. But his co-defendant, Leroy Lewis, was allowed to plead guilty and is already out on parole.

But Campbell, who is black, went to trial in 1992 in Houston during a time when prosecutors there were three times more likely to pursue a capital case against African-American men than against white men. He had an incompetent lawyer whose many missteps included failing to either investigate his case or to present evidence that would have mitigated his sentence, notably the fact that Campbell was mentally retarded. (This term generally isn’t used anymore to describe people with intellectual disabilities—except with regard to the death penalty, where it has a specific definition in the law.)

More bad lawyering over the years, along with hostile Texas courts, left Campbell without many avenues to appeal, even though in 2002, the US Supreme Court banned the execution of the mentally disabled. What’s more, Campbell’s lawyers only recently discovered that prosecutors and other state officials long had substantial evidence of his limited cognitive functioning—including school records and test results placing his IQ at 68—that should have spared him from the death penalty. Yet they failed to turn it over to defense counsel until just days before his scheduled execution. Last week, the Texas Court of Criminal Appeals nonetheless denied Campbell’s request to stay the execution, despite clear concerns from several judges on the court that his claims of mental retardation were compelling and justified further review.

“It is an outrage that the State of Texas itself has worked to frustrate Mr. Campbell’s attempts to obtain any fair consideration of evidence of his intellectual disability,” said Robert C. Owen, an attorney for Mr. Campbell. “State officials affirmatively misled Mr. Campbell’s lawyers when they said they had no records of IQ testing of Mr. Campbell from his time on death row. That was a lie. They had such test results, and those results placed Mr. Campbell squarely in the range for a diagnosis of mental retardation. Mr. Campbell now faces execution as a direct result of such shameful gamesmanship.”

Read Marc Bookman’s essay: “How Crazy Is Too Crazy to Be Executed?

Campbell’s attorneys have filed an emergency request for relief with the US Fifth Circuit Court of Appeals, where his odds also seem relatively slim. The Fifth Circuit is notoriously hostile to death penalty appeals. One of its judges, Edith Jones, is famous for reinstating a death sentence for a man whose lawyer slept through his trial. She has said publicly that the death penalty provides criminals with a “positive service” because it gives them an opportunity to get right with God right before the state kills them. She’s also facing an unusual ethics complaint over allegedly racist remarks she made at a lecture at the University of Pennsylvania last year, where she reportedly claimed that blacks and Hispanics were predisposed to crime and “prone” to violence. Notably, too, she insisted that defendants who raise claims of mental retardation “abuse the system” and she criticized the Supreme Court’s decision prohibiting the execution of the mentally disabled. (She’s said that anyone who can plan a crime can’t be mentally retarded.)

If Campbell can’t make any headway with the Fifth Circuit, his next appeal goes to Supreme Court Justice Antonin Scalia, who reviews emergency death penalty appeals for the Fifth Circuit and is on the record as opposing the ban on executing the mentally retarded. (He also objected to the ban on executing juveniles.) So Campbell’s best hope, at least in the short run, is Perry, the three-term GOP governor with presidential aspirations. Perry has the authority to issue a 30-day stay of execution, and if the parole board recommends clemency, as Campbell’s lawyers are requesting, he could commute Campbell’s sentence to life in prison.

Execution politics aren’t pretty. As governor of Arkansas, Bill Clinton left the campaign trail in 1992 to personally oversee the execution of a brain-damaged man, Ricky Ray Rector, and prove his tough-on-crime bona fides. Perry, though, has long and documented track record of executing hundreds of people already, and the politics of the death penalty have unexpectedly and quickly started to change. A vote for clemency isn’t likely to affect Perry’s future political prospects. In this case, it might even help them. He has a few hours more to decide.


Will Rick Perry Execute A Mentally Disabled Man Tonight?

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