Source: Wall Street Journal- ASIA EDITION

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

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(COMMERCIAL BREAK) BLITZER: Let's dig deeper on that radical American cleric accused of inciting terror and holy war against the United States. Should the U.S. government be able to put him and other American citizens abroad on a list for targeted killing? That is at the center of a lawsuit filed today by these civil liberty groups. Our homeland security correspondent Jeanne Meserve has the details for us. What is going on? 

JEANNE MESERVE, CNN HOMELAND SECURITY CORRESPONDENT: Well, Wolf, here is the deal, civil liberty groups want to bring the suit about the targeting list, but in effect, they say they have to get the government's permission to challenge government policy. 

(BEGIN VIDEOTAPE)

MESERVE: The government says that Anwar al Awlaki is an enemy of America, but two civil liberty groups say that in pursuing him, the U.S. government is betraying its own constitutional principles. 

ANTHONY ROMERO, ACLU EXECUTIVE DIRECTOR: In America, we give all citizens and all individuals due process of law before putting them to death. 

MESERVE: The government alleges that Awlaki who is a U.S. citizen now believed to be in Yemen communicated with the Ft. Hood shooter and aided the unsuccessful underwear bomber. The U.S. government has never explicitly acknowledged that he is targeted for assassination but read between the lines. 

JOHN BRENNAN, WHITE HOUSE COUNTERTERRORISM OFFICIAL: Individuals shouldn't be able to hide behind their U.S. passport or U.S. citizenship and if they are challenged to us, we need to make sure we address that threat. 

MESERVE: Al Awlaki's father hired the American Civil Liberty Union and the Center for Constitutional Rights to contest the government's right to target his son without charges or trial or verdict, but because the treasury department has placed Awlaki on a special terrorist list, they say they are required to get a government license to represent his interests. 

ROMERO: Groups like ours should not play mother may I with the federal government when our goal is to challenge governmental policies that target U.S. citizens for assassination. 

MESERVE: But a former justice department lawyer says that whether Awlaki gets representation should be the government's call. 

DAVID RIVKIN, FORMER JUSTICE DEPT. LAWYER: This is a war. The citizenship of an individual is not relevant. What is relevant is whether this individual is an enemy combatant who can be lawfully attacked with deadly force.

(END VIDEOTAPE)

MESERVE: The treasury department said this afternoon that it will work the civil liberties group to make sure he will get legal services, and the ACLU says that if they are going to give him license, they should do it quickly, because he has already been targeted by multiple drone strikes. Wolf, back to you. 

BLITZER: Multiple drone strikes in Yemen where he is right now. All right. Thanks very much.

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Published in The Washington Post June 4, 2010.  By William A. Burck and David B. Rivkin Jr.

Without knowing all of the facts, and particularly whether firm promises of government jobs were made, it cannot be ascertained at the moment whether dealings among Obama White House officials, former president Bill Clinton and Pennsylvania Rep. Joe Sestak and Colorado House speaker Andrew Romanoff broke the law. What is clear, however, is that White House Counsel Robert Bauer has engaged in an unprecedented "investigation" of the Sestak affair, culminating in the issuance of his May 28 report.

This effort was, at best, misguided. At worst, it impeded any legitimate Justice Department investigation, harmed the cause of justice and further reinforced public disgust with Washington.

The White House counsel is the president's principal legal adviser, but the role is not independent of the president or the White House. Unlike the attorney general, who is the nation's top law enforcement officer, the White House counsel is not confirmed by the Senate and does not supervise career lawyers charged with impartially investigating and prosecuting possible crimes on behalf of the people of the United States. Executive privilege, which restricts public disclosure of certain communications between the president and his staff, is at its peak for advice given to the president by his counsel.

To be sure, the counsel sometimes has to handle allegations of wrongdoing by White House staff members. But when the allegations concern purportedly criminal misconduct -- as was alleged by some in recent years in the Valerie Plame affair, the dismissal of U.S. attorneys and the destruction of CIA "interrogation tapes" -- the procedures that the counsel must follow are quite strict and the scope of any investigation narrow. The counsel would be limited to conducting a preliminary inquiry to establish whether there is some factual basis for the allegations. The lawyers would follow standard procedure for preserving the integrity of the investigation, including instructing staff members to preserve all relevant documents, not to discuss the matter with each other and to take all other necessary steps to preserve evidence. If there is some basis to believe a crime was committed, even if the evidence may not be definitive or even particularly convincing, the Justice Department would step in for possible further investigation.

Given that the U.S. Code explicitly proscribes "promises [of] any employment, position, [or] appointment . . . to any person as consideration, favor or reward for," among other things, staying out of any political primary, this standard has been amply met. Indeed, Bauer's own conclusions establish that there is a factual basis to believe Sestak may have been offered a position as an illegal quid pro quo. Nonetheless, Bauer clearly does not believe that anyone violated the law. And he may well be right. Perhaps the position was offered unconditionally. Perhaps Sestak misunderstood. Perhaps even if it was a quid pro quo, the offer does not satisfy the statutory requirements for criminal liability. But in the face of doubt on these questions, it is not the counsel's role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works.

This conflict of interest makes Bauer's numerous lapses in normal investigatory procedure all the more troubling. His report is silent concerning similar job-related discussions last year between Deputy White House Chief of Staff Jim Messina and Romanoff, who is mounting a primary challenge against Democratic Sen. Michael Bennet in Colorado. Any credible investigation would have inevitably focused on whether the alleged job-for-withdrawal scenario was exclusive to Sestak or part of a broader pattern of conduct.

Meanwhile, according to various press accounts, witnesses were permitted to consult with each other directly or through intermediaries. This is a major process error that would horrify any experienced Justice Department prosecutor, because it allows witnesses to influence each other's recollections or even "get their stories straight." Once this happens, it is very difficult to discern what actually happened. Even releasing Bauer's report taints the investigation by telling witnesses the "official" narrative. E-mails or other documents, which cannot easily be altered to fit the story, may now be the only reliable way to uncover what everyone said and intended.

The claims that past administrations have done this, too, or that further inquiries would only distract us from tackling the nation's pressing problems are risible. The whole matter is about, at the front end, senior White House officials engaging in unsavory political horse trading, and leveraging in the process, explicitly or implicitly, the awesome power of the federal government to reward or punish. Separating governance from politics is a key imperative in our body polity and a principle emphasized in ethics briefings given to all government employees, from the lowly GS-4 to the chief of staff to the president.

Even more important, at the back end, l'affaire Sestak is about the senior White House officials, who should be held to the highest ethical standard, acting irresponsibly. This is no minor matter, since nothing reveals more about the soul of any administration than how it deals with suspected legal lapses by its own. At a time when the public's respect for all branches of the federal government is miserably low, Bauer's report cannot be the end of the matter. The only credible way forward is to have the Justice Department investigate both the original Sestak-related White House discussions and the exchanges with Romanoff and any other similar dealings -- as well as the way in which the White House has handled the matter since the story broke.

William A. Burck served in the Justice Department and was a deputy White House counsel under President George W. Bush. David B. Rivkin Jr. served in the Justice Department and the White House Counsel's Office under presidents Ronald Reagan and George H.W. Bush.

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By David B. Rivkin, Jr. and Lee A. Casey [Posted from The Wall Street Journal May 26, 2010]

Sixty-eight senators have sent a letter to President Obama urging U.S. ratification of the Ottawa Convention. The 10-year-old treaty, banning the production and use of land mines, has been accepted by over 150 countries, including most of our allies.

The U.S., however, should not join this august club. Land mines remain a critical part of America's 21st century security architecture.

The demilitarized zone (DMZ) between North and South Korea contains massive minefields. They guard against surprise attacks by numerically superior North Korean infantry who are poised 20 miles from the outskirts of Seoul.

Deterring nuclear-armed and consistently erratic North Korea (its most recent provocation was sinking a South Korean warship) is a challenge requiring all the tools in the U.S. military arsenal. Ratifying the Ottawa Convention means dismantling the DMZ minefields. That means an American president might face the unpalatable choice of watching South Korea (and the U.S. forces stationed there) overrun—or using nuclear weapons.

Although the U.S. has chosen not to deploy land mines in post 9/11 wars, they can save the lives of American soldiers. Our bases in Iraq and Afghanistan have regularly come under insurgent attacks, including on the morning of Oct. 3, 2009, when hundreds of Taliban penetrated the defense perimeter of Combat Outpost Keating, an isolated U.S. camp in northeastern Afghanistan. Outnumbered six to one, the G.I.s fought a desperate action with small arms. U.S. aircraft arrived, but only after eight Americans (of 53) were killed. Had the camp been surrounded with a minefield, the results would have been very different.

Outside Korea, land mines on a grand scale may no longer be an essential part of the U.S. arsenal. But ratifying the Ottawa Convention transforms a policy choice into a legal obligation that, notably, neither Russia nor China (or Iran, North Korea and several other rogue states) have accepted. Unilateral disarmament here is neither smart arms control nor good foreign policy.

Land mines do present important humanitarian concerns. Once deployed, they can remain active for decades, and civilians are regularly injured or killed by these weapons long after a conflict has ended. This is a particularly acute problem in the developing world, where many belligerents never bothered to mark or clear the affected areas.

But the newest generation of American "smart" mines can be remotely armed and disarmed, or programmed to blow themselves up after a given time. These weapons are no more or less inhumane than other types of military hardware.

While some smart mines can be expected to malfunction and remain armed, the same is true of all unexploded ordinance, including aircraft-delivered bombs and artillery rounds. Properly used, land mines are not only an effective weapons system, but their limited range can produce far less unintended damage to civilians than, for example, a heavy artillery barrage or aerial bombing.

The treaty, however, would ban all land mines, stupid or smart. In truth, most of its proponents are more interested in reworking the entire legal regime governing warfare than they are in making any particular type of weapon more humane.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his "commitment to reaffirm U.S. leadership in solving global problems."

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

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WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

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Rivkin transcript from PBS NewsHour

Airdate: Thursday, April 1, 2010

Host: You believe it’s unconstitutional to require people to buy insurance. Why?

David Rivkin: It’s unconstitutional both as a matter of fundamental principle and relevant case law. The key aspect of our constitutional architecture is that the federal government is a government of limited and enumerated powers. The point was made by James Madison in Federalist Papers which said that the powers of federal government are few and well-defined, the powers retained by the states are numerous and indefinite.

If you have an infinitely broad commerce clause, under which Congress can legislate, it would absolutely eviscerate state authority to have any independent regulation.

There are very recent cases, 5-4 decisions, including [United States vs] Lopez, which struck down the gun free school zone act and [U.S. v.] Morrison, which struck down key portions of violence against women act, that say very clearly …. there have to be meaningful limitations on the scope of commerce clause otherwise it would swallow the rest of the Constitution …this [health care reform] doesn’t relate to economic activities, it compels people to engage in behavior they do not desire.

Rivkin: Two points: Nobody disputes that Congress can regulate the market, the business of buying insurance, the terms of insurance, the conditions of insurance. What we’re talking about here, though, is compelling people to purchase something they do not desire merely because there’s an economic footprint.

Let me reiterate the point powerfully articulated by Justice Kennedy, who is likely to be the swing justice here: There have to be meaningful limitations under the commerce clause. If you say as my colleague General Cordray says that a failure to purchase insurance has an economic impact, there is literally no activity known to man that would not have some economic impact and its aggregate would impact interstate commerce.

Host: You’re saying it boils down at least in part to whether this is an economic activity?

Rivkin: As distinct from something that has an impact.

Rivkin: In Gonzalez v.Raich , the activity involved growing marijuana at home in a bathtub for personal consumption had no profit motive, but it was the same activity as growing marijuana in parks and selling it … Where General Cordroy is wrong—before you aggregate the impact, it has to be an economic activity. Not necessarily one of a profit motive, but an economic activity. What he does is read out of existence Lopez and Morrison, which are ‘95 and 2000 cases where the courts said very clearly there have to be meaningful limitations.

Host:  Let me ask you about the other argument: That it is unconstitutional to require states to set up insurance exchanges for people who don’t have insurance. Can you briefly explain to us why?

Rivkin: There is a whole line of cases that is basically rooted in the 10^th amendment that talks about states retaining viable independent authority.

New York v. United States, the case is called Prince. You cannot co-opt states, you cannot commandeer which is a term of our state officials …  that is well-established…

This statue will compel Florida and other states to spend billions of dollars of their limited resources, taking them away from environmental protection, taking them away from schools. Even if you didn’t have a mandate, that part of the statute alone is clearly unconstitutional.

Rivkin: Very important to underscore, Medicaid began as a voluntary effort. We would argue that you cannot opt out of Medicaid, it is not a viable choice for any responsible government, it would absolutely destroy infrastructure …

Host: But that’s not a change in this law-

They’re changing Medicaid in a way that would swamp Medicaid roles, costing billions in state revenue, and remember states cannot print money like the federal government. Having the states hire thousands of people to administer; large chunks of this whole regulatory edifice cannot be opted out of.

Host: Finally, what one hears about many of the legal opponents is that truly what this is all about is an opposition to health care reform and this is another way of trying to undermine it…

Rivkin: This is unfortunate. There are many worthwhile policy causes including carrying guns in your schools, after 9-11 increasing our ability to surveil the enemy.

No matter how meritorious your policy goals are, you have to do it in a way that is consistent with our constitutional architecture. This is the American way.

I frankly don’t understand the argument that because health care reform is a good thing, which I would stipulate, that challenging it somehow is wrong. These are serious arguments.

Host: You just said you believe health care reform is a good thing

Of course, it’s the question of how it’s being done. The Washington Post editorial page said it is a serious lawsuit, it has merit, it ought to be seriously considered.

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