LGBT Social Movements Cause Obama Administration to Shift Policy on Gay Rights

Attorney General Eric Holder has concluded that Section 3 of the Defense of Marriage Act violates the Constitution. This is a complete reversal of DOJ's position regarding DOMA. Although President Obama campaigned on a promise to seek the repeal of DOMA, DOJ has defended the statute in recent litigation.

Even more important than his conclusion that Section 3 violates the Constitution, Holder also argues that courts should apply "heightened scrutiny" to classifications based on sexual orientation. This also represents a reversal from recent DOJ arguments. When courts apply heightened scrutiny, they are less deferential to governmental justifications for discrimination. This standard could potentially invalidate numerous laws that discriminate against gays and lesbians.

Social Movements

It is important to note the role that social movement activity has played in causing this shift in policy. LGBT groups have been the most vocal in their criticism of policy choices by the Obama administration. I previously have written on this subject.

Social movements are essential to social change. While many liberal organization -- particularly, traditional civil rights groups -- have never publicly criticized the Obama administration, LGBT group have demanded better results and swifter action in a host of areas. Apparently, their advocacy has paid off.

It remains unlikely that race-based civil rights groups will pressure the Obama administration to take more progressive stances on issues relevant to poor persons of color. So long as most persons of color remain highly supportive of Obama, these groups have will have no incentive to demand more substantive justice. Pity.

Another Bush-Like Proposal From the Obama Administration?

According to New York Times sources, the Obama administration is floating a proposal to delay presenting terrorism suspects to judges for an initial hearing. The initial hearing is a formal legal process during which a criminal suspect comes before a judge and learns of the charges against him or her and about the right to remain silent and to have an attorney. A judge could also set bail or require the detainee to remain incarcerated.

Recently, Eric Holder said that the Obama administration would ask Congress to change exceptions to the Miranda rule, which would likely violate current Supreme Court doctrine. The New York Times reports that changes to Miranda and to the initial hearing process could come in the same legislative proposal:

President Obama’s legal advisers are considering asking Congress to allow the government to detain terrorism suspects longer after their arrests before presenting them to a judge for an initial hearing, according to administration officials familiar with the discussions.

If approved, the idea to delay hearings would be attached to broader legislation to allow interrogators to withhold Miranda warnings from terrorism suspects for lengthy periods, as Attorney General Eric H. Holder Jr. proposed last week.

The devil is always in the details, but on the surface, this sounds does not sound good.

Obama Administration Wants to Limit Miranda - But Can It?

The New York Times (also - the Washington Post) reports that Attorney General Eric Holder will seek a new law permitting the government to decline from Mirandizing terrorism suspects. Specifically, the New York Times says that:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

He said interrogators needed greater flexibility to question terrorism suspects than is provided by existing exceptions.

Conservatives have blasted interrogators for informing terrorism suspects of their constitutional right not to speak to law enforcement officers and to secure legal counsel.. Conservatives, however, have a long history opposing Miranda.

Miranda Is a Constitutional Requirement
In 2000, the Supreme Court rejected the Justice Department's argument that the Miranda requirement was not a constitutional rule. Only two justices dissented.  Former Chief Justice Rehnquist -- a staunch conservative -- authored the ruling.  Given the Court's ruling, it is unclear how Congress can alter and set limits to Miranda by statute. Civil libertarians quoted by the New York Times agree with this assertion:

Still, Anthony D. Romero, executive director of the American Civil Liberties Union, said Congress had no authority to “chip away” at the Miranda ruling because it was based in the Constitution. He predicted that any effort to carve a broader exception would be vigorously contested.

“The irony is that this administration supposedly stands for the rule of law and the restoration of America’s legal standing,” he said. And Virginia E. Sloan, president of the bipartisan Constitution Project, said the existing public safety exception to Miranda seemed to be working, so there was no need to erode constitutional protections in ways that could later be expanded to other kinds of criminal suspects.

“It makes good political theater,” she said, “but we need to have a clear problem that we are addressing and a clear justification for any change. I haven’t seen that yet.”

The Court could, however, validate legislative guidelines if Congress acts upon Holder's recommendation.

When Will Obama Close the Guantanamo Bay Prison?

Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.

Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.

Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.

Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.

Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.

No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.

Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.

Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.

Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.

In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.

Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.

Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."

No Prosecution of the Bush Six in the United States

Earlier today, Dissenting Justice published: "No Prosecution of the "Bush Six" in Spain." The article discusses a rumored decision by the Attorney General of Spain to decline pursuing prosecuting Bush administration officials who authorized the torture of terrorism suspects. If Spain decides to prosecute the officials, the decision largely have symbolic meaning because the Obama administration has already taken a position disfavoring prosecution of Bush-era officials who either authorized or committed torture.

Today, the Obama administration released the controversial "torture memos" -- or legal documents prepared by Department of Justice attorneys that justify the use of torture by United States interrogators. This issue created domestic and international outrage during the Bush administration, and it caused many self-identified progressives in the Democratic Party to align with Obama over Hillary Clinton during the primaries.

Obama, progressives argued, would dramatically improve the image of the United States in the "world community" because he would implement their understanding of civil liberty, which includes vigorous opposition to governmental secrecy, the abolition of torture, extension of habeas rights to all terrorism detainees, an absolute prohibition of indefinite detention, and opposition to rendition. Obama, however, has failed to meet the expectations of civil libertarians on most of these issues.

Today, President Obama made new statements regarding the potential prosecution of Bush-era officials, which will likely generate additional criticism among progressives. President Obama's comments reiterate his stance disfavoring the prosecution of Bush administration officials. An Associated Press article analyzes Obama's new statements opposing prosecution. Here is a clip from that article:

President Barack Obama absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects Thursday, even as his administration released Bush-era memos graphically detailing — and authorizing — such grim tactics as slamming detainees against walls, waterboarding them and keeping them naked and cold for long periods.

Human rights groups and many Obama officials have condemned such methods as torture. Bush officials have vigorously disagreed.

In releasing the documents, the most comprehensive accounting yet of interrogation methods that were among the Bush administrations most closely guarded secrets, Obama said he wanted to move beyond "a dark and painful chapter in our history. . . ."

Although civil liberties advocates believe President Obama should not have absolved Bush administration officials, the President argues that:

"Nothing will be gained by spending our time and energy laying blame for the past."

Attorney General Eric Holder made similar comments:

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department. . . ."

Holder also said that the government would provide legal counsel for Bush-era officials who face legal proceedings (either before a court or Congress) related to the issue of torture. Holder also stated that the government would pay for any monetary judgments against these officials.

Cynical Conclusion
With all of these dramatic "changes" going on in the nation, I have decided to re-post a "blast from the past": Progressives Awaken from Obama-Vegetative State.

New Medical Pot Mystery

President Obama indicated during his campaign that he disfavored the prosecution of medical pot usage and distribution. He also said he would not use his office to "circumvent" state law on the issue. After he became president, however, the DEA raided medical pot dispensaries in California, which led to political protests.

Recently, Attorney General Eric Holder caused a major buzz among medical pot advocates when he announced that Obama's campaign promise had already become policy. According to the L.A. Times, two days after Holder's comment, the United States Attorney for the Central District of California (which includes Los Angeles) directed prosecutors not to pursue any more criminal charges against medical pot dispensaries. A few days later he abruptly ordered prosecutors to resume business as usual:

The U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban on Friday, according to sources familiar with the developments.

U.S. Atty. Thomas P. O'Brien declined comment on what prompted him to issue the directive or to later rescind it.

O'Brien's decision to temporarily halt the prosecutions came two days after remarks by Atty. Gen. Eric Holder, who seemed to imply at a Washington, D.C., press conference that medical marijuana prosecutions would not be a priority for the Justice Department under President Obama.

A Justice Department official said Friday that the attorney general did not direct O'Brien or any other U.S. attorney to alter policies regarding the prosecution of such cases.

My Take
I have always assumed that if Obama moved on this matter, he would do so in a subtle fashion. The original memorandum from the United States Attorney, however, was very open and explicit -- even though it was "confidential" (so confidential that the L.A. Times presumably has a copy of it).

A formal policy of nonenforcement will excite proponents of decriminalization. But an explicit policy would also generate vocal criticism from "law and order" types who fear liberalization of drug laws and who do not agree with a president declining to enforce an entire category of federal criminal law.

Furthermore, the threat of prosecution of medical pot users and distributors could serve as tool for enforcing other crimes -- in particular, nonmedical usage of pot. For that reason, many prosecutors probably do not want an explicit policy of nonenforcement, which would constrain their options unless it included exceptions for certain circumstances. I do not know if this analysis explains the mystery behind the conflicting memoranda, but it seems plausible.

Obama v. Pelosi v. Reid: Top Democrats Challenge Obama on Assault Weapons Ban

The "Urban Policy" section of WhiteHouse.Gov contains a discussion of President Obama's positions on many issues including "Crime and Law Enforcement." With respect to criminal law policy, the website states that Obama and Biden "support making the expired federal Assault Weapons Ban permanent." The language refers to the now expired Assault Weapons Ban Act of 1994; the original statute phased out after 10 years. During his presidential campaign, Obama promised to renew the ban, and yesterday, Eric Holder announced that the administration would indeed seek to reinstate the policy.

Not so fast -- say Pelosi and Reid. According to The Hill, the two top Democrats in Congress do not want to bring back the ban. House Speaker Nancy Pelosi, known favorably and pejoratively as a "San Francisco Liberal," said that instead of reviving the law, the government should "enforce the laws we have right now." And an aide to Senate Majority Leader Harry Reid said that "Reid would oppose an effort [to] reinstate the ban. . . ." Neither Obama nor Holder have commented on this matter to the media.

Holder Statement: A New High for Medical Pot Proponents?

Medical marijuana advocates have long believed that President Obama would stop enforcing federal drug laws against medical pot users. Yesterday, they got a new high from Attorney General Eric Holder's statements on the issue:

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.

Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

"What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he said. "What he said during the campaign is now American policy."

I have always suspected that if Obama did anything on this issue, it would not come as a formal policy directive (such as an executive order). Holder's statement that Obama's campaign promise is "now American policy" suggests that is true.

But a lot of issues remain fuzzy. First, according to news accounts, Holder only addresses the specific question of federal raids on medical marijuana distributors, but he does not comment on the enforcement of federal law against the usage or possession of pot in other contexts. Even if the government does not conduct raids on large distributors of medical marijuana, it could still arrest and prosecute general distributors or users. Furthermore, if the anti-drug crowd goes up in flames over lax enforcement of federal law, Obama might reconsider the matter. But for now, the pot legalization crowd probably has a little buzz.

GITMO: Why Is Obama Closing Such a Professional, Lawfully Run Facility?

Before his inauguration, President Obama announced that once he took office he would immediately start the process of closing the Guantanamo Bay detention center. The detention center has received deep criticism from domestic and foreign human rights advocates, civil liberties activists, and from liberal politicians. Many commentators have argued that Obama's election will allow the United States to move beyond its damaged global reputation because Obama will remedy civil liberties violations and end practices such as indefinite detention, "harsh" interrogations, and other procedural harms that gave Bush and the country a bad reputation in many parts of the world.

During his first week in office, Obama lived up to his promise and issued an executive order which requires the closure of the Guantanamo Bay detention center within one year. But the administration's position regarding the detention center has evolved tremendously this week as a result of two major developments.

First, Admiral Patrick Walsh of the Navy completed a review of the facility, which Obama commissioned. The Walsh report concludes that the detention facility complies with the Geneva Conventions. Walsh makes minor recommendations for improving the lives of detainees, such as giving certain "dangerous" individuals more outdoor recreation time. Human rights activists have condemned the report.

Second, Attorney General Holder has just completed a tour of the facility, and he also gives it a favorable review. Holder says that he is "impressed" by the "professionalism" of the staff at the facility. Holder also says that he did not witness any mistreatment of detainees. Instead, Holder says that he "saw a conscious attempt by those guards to conduct themselves in an appropriate way." Perhaps a visit by the Attorney General of the United States caused them to exhibit their best behavior. Everyone wants to impress the boss (or the boss's lawyer), right?

Question: If the Guantanamo Bay detention center is legally and professionally run, why is Obama closing it? I suspect that the decision to close the detention center has a lot to do with the president's campaign promises and the utter contempt that many liberals have for the facility.

But the decision to close the center could also form part of a broader strategy to send detainees to Bagram Air Force Base in Afghanistan where, arguably, they would not qualify for habeas corpus (like Guantanamo Bay detainees). The Obama administration has already embraced Bush's position that detainees at Bagram are not entitled to habeas corpus and that the government can try them in military commissions. Also, Holder and Solicitor General Elena Kagan have both argued that the United States can indefinitely detain Al Qaeda suspects, regardless of whether they were caught on the battlefield. CIA Director Leon Panetta has also said that the CIA will continue the practice of rendition, a program which transfers individuals to other countries without the formal procedures associated with extradition. Combining all of these powers, Bagram could end up becoming Obama's GITMO.

Attorney General Holder Visits Guantanamo Bay After Pentagon Report Declares That Detention Facility Complies With Geneva Conventions

Last week, the Pentagon released a study which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, however, human rights groups maintained that the treatment of detainees fell short of domestic and international law.

Attorney General Eric Holder is now visiting the facility to help design a strategy for closing it. In January, President Obama issued an executive order which requires the closure of the detention center within one year. It is unclear where the government will detain individuals once it closes the facility and whether, if prosecuted, they will receive trials in federal courts for alleged criminal activity.

Both Holder and Solicitor General Elena Kagan, however, have insisted that the government can indefinitely detain Al Qaeda members. The Department of Justice also agrees with the Bush administration's position that the reasoning of a 2008 Supreme Court ruling that allows Guantanamo Bay detainees to contest their detention before a federal court does not apply to the Bagram military base in Afghanistan because it is in the "theater of war" and because presenting detainees before a federal court would be infeasible.

Together, these two arguments could justify a policy of indefinite detention of terrorism suspects at Bagram, even as the government closes the maligned Guantanamo Bay facility. It remains unclear, however, whether the Obama administration will actually replicate Bush's policies by shifting the policy of prolonged detention to Afghanistan and away from Guantanamo Bay. Nevertheless, his administration has certainly embraced legal positions that lay the foundation for the continuation of these practices, which generated very passionate criticism from the Left during Bush's presidency.

BREAKING NEWS from the Washington Times: When Eric Holder Was In Private Practice, He Did His Job!

The Washington Times has published an interesting article which reports that Attorney General Eric Holder did his job while he was a lawyer in private practice. Recently, Holder sparked a minor (if you disagree with the adjective, please feel free to choose your own) controversy, when he said that the country was a "nation of cowards" regarding issues of race.

The title of the Washington Times article -- "Holder Litigated Against Rights Claims" -- is almost as provocative as Holder's comments. The article reports that Holder "found himself on both sides of the courtroom on civil rights cases during his eight-year tenure at a high-profile Washington law firm." But the fact that litigators represent plaintiffs and defendants on the same issues is hardly newsworthy. Even in the area of criminal law, prosecutors later become defense attorneys or vice versa.

But the article's focus on Holder's representation of civil rights defendants seems particularly strange in light of the following fact: The Department of Justice, which Holder now runs, also represents defendants in discrimination claims. As the official lawyer for the United States, DOJ defends the federal government in all litigation, including cases alleging claims of discrimination. DOJ also defends the government in cases alleging deprivations of constitutional rights (including the rights to equal protection and liberty). Apparently, Holder's prior work prepares him for the complexity of his current job.

The article also states that the number of civil rights cases that went to a final verdict dropped during Holder's prior four-year stint at DOJ. But a number of reasons could have led to the decline -- including that the government settled more cases or that courts disposed of more cases on pre-trial motions (e.g., summary judgment or dismissal).

I was also struck by the inclusion of commentary from a woman whom the article reports was a plaintiff in a civil rights case against MBNA. The article reports that MBNA hired Holder to "fight off" (I have this image of Holder in fencing gear) the discrimination claim. The plaintiff in the case says she hoped that Holder did not get confirmed as Attorney General. The article does not present any of the facts of her case; it simply reports that the court ruled in favor of the company. But many factors, including the weakness of the plaintiff's case, could explain why she lost. Believing in the vigorous enforcement of civil rights does not require a concomitant belief that civil rights plaintiffs should always prevail.

Finally, the article reports that Holder also defended a bank against allegations that it provided "segregated" services to blacks. The court granted summary judgment for the bank. Summary judgment means that the undisputed facts establish victory for plaintiff or the defendant without the necessity of proceeding to trial. Although the article does not provide any facts from the case, proving race discrimination in civil rights litigation is usually very difficult. Unless the plaintiffs had pretty damning evidence, their claim of racial discrimination was doomed from the start, due in large part to conservative civil rights jurisprudence.

Final Word
In classic Dissenting Justice form, let's cut to the chase: I believe the article attempts to undercut Holder's inflammatory comments by portraying him as being on both sides of the fence with respect to racial justice. But it does a pretty poor job in this regard. Lawyers often represent defendants and plaintiffs on the same issues, and (more importantly) DOJ defends the United States against discrimination claims.

Furthermore, it's pretty difficult to draw implications about a lawyer's ideology or commitment to an issue simply because he or she represented a particular party to a case. Although lawyers often take cases for political or ideological reasons, most of the time, a case is just a case. Holder worked at a large law firm. I imagine that his representation in most cases did not reflect upon his own political values. Instead, he was just doing his job. For this reason, the comments of the civil rights plaintiff who did not want the Senate to confirm Holder seem misplaced.

Finally, I have not yet commented on the "cowards" issue because I have a natural aversion to drama, but I feel the need to address the matter briefly. Was Holder's statement inflammatory? You betcha (thanks, Sarah - I like this phrase). But underneath the surface, I thought he confirmed, even if for different reasons, what conservatives and moderates have said for many years: that "political correctness" has made people afraid to talk about race (or sex or anything worthy of discussion) for fear of being called a racist. Outside of the colorful nature of the comment, isn't it true that many people are indeed afraid of talking about race? If not - then go for it!

Speaking of Obama, Rendition and Torture. . . .

For an analysis of Obama's comments on rendition during his interview with the New York Times, visit this link: Obama's "Interesting" Comments About Rendition.

John Schwartz of the New York Times has written an interesting article about a lawsuit on the subject of rendition and torture (an issue that caused much angst among partisan Obama supporters earlier this week). The suit alleges that on behalf of the U.S. government, a Boeing subsidiary transported several individuals to nations where they were subsequently tortured. The trial court dismissed the case after the government asserted the "state secrets" privilege. The state secrets privilege shields from discovery any documents or other materials that contain sensitive information related to national security. Courts have broadly applied this doctrine in torture litigation and, according to the ACLU, this has resulted in the dismissal of each anti-torture lawsuit against the Bush administration.

The case is now on appeal, and oral arguments will take place next week. Many human rights activists are waiting to see whether the Obama administration will abandon or modify the state secrets argument. In their critiques of rendition, human rights groups have often condemned Bush's usage of the state secrets privilege as a convenient tool to mask deprivations of human rights and to evade judicial review. Attorney General Holder has said that he would review pending cases that assert the privilege, but it remains unclear how he will approach the subject in this particular case.

I really hate "guessing" an attorney's potential legal strategy (especially based on reading one newspaper article). But if the oral argument is slated for Monday, and the government has not yet indicated that it wants to reschedule the date of the hearing or otherwise demonstrated that it will shift gears and make a completely new argument, then I suspect that it will defend the judgment it has already won in the trial court. DOJ will probably argue that the court correctly applied doctrine related to the privilege. This would not dictate how the U.S. asserts the privilege in future cases, but it would deny these particular plaintiffs of the opportunity to build their case.

Ben Wizner, of the ACLU, would take a sharply different view a DOJ argument favoring dismissal:

If he repeats the Bush administration’s argument that this case must be
dismissed at the outset,” Mr.Wizner said, “then we’ll know that despite the
change of administration, the policy of the United States that torture victims
be shut out of the courtroom has continued.

Well, at least from the perspective of the ACLU, Monday could answer a lot of political and legal questions.

For more on the state secrets privilege, see:

Constitutional Law Prof Blog

Reforming the State Secrets Privilege (written by my colleague Professor Amanda Frost and Justin Florence).

For articles on rendition, see:

Obama's "Interesting" Comments About Rendition

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

Attorney General: Eric Holder, Clinton-Era DOJ Official

Newsweek reports that President-Elect Barack Obama has selected Eric Holder, a partner at Covington and Burling, a prestigious law firm in Washington, D.C., as Attorney General. Holder was Deputy Attorney General in the Clinton administration. If chosen, Holder would become the first black Attorney General. According to reports, Obama will make the announcement after he names other cabinet picks (but secrets are difficult to maintain in DC). So far, Clinton officials have done pretty well for themselves in the new administration!