Law and Politics

The Obama administration is trying to get Texas to postpone the execution of a Mexican national to avoid an international incident:

Making the unusual move of trying to stop a state execution, the Obama Administration on Friday afternoon urged the Supreme Court to delay temporarily the scheduled execution in Texas next Thursday of a Mexican national, Humberto Leal Garcia, convicted of the kidnap, rape, and murder of a 16-year-old girl in 1995.   Speaking for the Justice and State Departments, Solicitor General Donald B.Verrilli, Jr., argued that Leal’s execution would cause the U.S. to violate treaty obligations  with “serious repercussions” for foreign policy and would raise threats of retaliation to Americans who travel or work abroad.

Leal’s American attorneys, strongly supported by the Mexican government and several other foreign governments, are seeking to postpone his execution for the same reasons that Verrilli offered Friday: that there is not time, before next Thursday, for Congress to pass a new law that would give Leal and other foreigners convicted of crimes in the U.S. a right to challenge their conviction because they were denied their treaty rights under the Vienna Convention.  That treaty supposedly guarantees a foreign national a right to consult with agents of his home country when arrested for crimes in another nation.

The Department of Justice has filed a brief in support of a gay government employee who is seeking equal access to health benefits for her wife. In the brief, the DOJ for the first time makes an explicit argument that the Defense of Marriage Act is unconstitutional:

Today, the Department of Justice filed a brief in federal court employee Karen Golinski’s federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.

In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government’s “significant and regrettable role” in discrimination in America against gays and lesbians.
Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder’s decision that Section 3 of DOMA — the federal definition of marriage — is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. Previously, the government had attached the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.

But, for Golinski’s case, DOJ did so. In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ’s lawyers — in describing how “gays and lesbians have been subject to a history of discrimination” — write, “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”

Compare that to the Feb. 23 letter, where Holder used more vague language, writing, “[T]here is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.”

Killing them softly with our drones:

What’s striking, though, is how presidents over many decades have been able to refine the process of going to war without saying so. In response to resistance from Congress and the American public, U.S. leaders have had little choice but to get much better at this stuff. In the 1970s, following the Church Committee hearings, Congress brought the coup-happy CIA into line, requiring a presidential finding and congressional oversight for any agency action that might influence events abroad. The 1973 War Powers Resolution, meanwhile, was largely a response to Nixon’s secret bombing of Cambodia.

In an effort to avoid unpopular wars, presidents have also gotten better at finding ways to cleverly use international bodies like NATO and the United Nations as diplomatic and legal cover, dating back to the U.N.-authorized “police action” in 1950 that came to be known as the Korean War.

In 1991 President George H.W. Bush so deftly used the U.N. to muster broad international action in the Gulf War that Washington was said to have made a profit on that war (a striking contrast to his son’s largely unilateral action in Iraq 12 years later). In Kosovo in 1999, Bill Clinton launched a massive NATO air attack in a humanitarian campaign that he refused to call a war, mounted in support of a cause he refused to define (because he didn’t support the Kosovars’ claims to statehood).

The latest refinement comes from America’s ever-advancing war technology and covert capabilities. The Predator drone has become Obama’s weapon of choice in theaters from Pakistan to Yemen and was recently introduced into the Libyan conflict, permitting a policy that comes very close to conducting war without public accountability (though U.S. ambassadors in these countries are supposed to vet targets and Congress is supposed to know, strike requests are almost never denied). In Afghanistan, the concept of counterinsurgency, itself a cleaned-up, somewhat euphemized form of war, is fading fast, and there aren’t any doctrines to take its place. More and more, instead, the administration has come to rely on the CIA and on private contractors not subject to normal oversight.



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