Gorgeous photo via Onkel Wart.

I have been re-reading some of Robert Jackson’s speeches and work during his Nuremberg prosecution days lately. I’m trying to understand how we got to where we are at the moment from where we said we wanted to be back then.

And this portion of his closing arguments at Nuremberg has been haunting me:

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The Prosecution’s case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation.

In my opinion, justice and democracy is never truly served by darkness. If you can bring a prosecution in the full sunlight of public discussion, why wouldn’t you?

Especially to dispel the very questions which darkness and secrecy raise about fairness of process, whether or not they are warranted.

By doing things the way we have, we have ensured the very thing that Justice Jackson decried: that there will always be doubt and questions about what was or was not done.  Because we have created the very blanks in the process that currently exist and, therefore, always will.

US Constitution via kjd.

Just a heads up to readers who will be attending Netroots Nation in Pittsburgh — August 13th through the 16th.

I’ve been asked to participate on a legal panel on Friday afternoon.  It’s scheduled from 2:00 to 3:15 pm ET.

Here’s the description:

After Sotomayor: How Progressives Reshape the Debate Over Our Constitution and the Supreme Court

Just a few months into his first term President Obama has already made a mark on the Supreme Court. What does the confirmation of Judge Sotomayor mean for the Court and its upcoming rulings? Following the first successful judicial confirmation of the Obama Era, how can progressives restore their claim to the text and history of the Constitution? How can the Netroots community help make both judiciary and the Constitution an important issue in progressive politics? How will this summer influence how the Obama Administration invests in future judicial nominations?

It should be a very lively discussion, given that the panel consists of Rep. Jerry Nadler, Nan Aron of Alliance for Justice, Doug Kendall of the Constitutional Accountability Center, and Thomas Sanez of the Mexican American Legal Defense and Education Fund. And me. 

Why do I keep hearing that old Sesame Street song "one of these things is not like the others?" (YouTube)

Hope to meet some of you in Pittsburgh!  Talking with FDL readers in person is always the highlight of the whole thing for me.

You can find the full Netroots Nation schedule here (or at least what’s been announced thus far).

Inside the pyramid at Cholula via El Fotopakismo.

An interesting pattern has emerged among the federal judges charged with reviewing the habeas petitions of Gitmo detainees.  Chisun Lee of ProPublica explains:

A close examination of the decisions shows that some of the fears about sending terrorism cases to civilian courts have not been realized. The judges haven’t been particularly hard on the government, holding it to a low standard of proof: If more than half the evidence tips in the government’s favor, then the detainee stays put — a far lower bar than “beyond a reasonable doubt.” The judges have also admitted hearsay evidence, and they’ve sealed courtrooms to protect government secrecy.

Yet despite these allowances, the government has not fared well. Twenty-six detainees have won their lawsuits, known as habeas petitions, while five have lost. So far, the Obama administration has filed just one appeal.

Despite the Lindsey Graham and friends’ shrieking hysteria to the contrary, the picture that has emerged from these habeas hearings is one of scanty to non-existent evidence for many of these low-level detentions.  And, worse, a reluctance to admit any wrong judgment on the part of intelligence agencies and the US government.

In short, we’d rather keep an innocent person locked up indefinitely than admit we’d done so.

Presumably the public admission would carry with it some level of public scrutiny and political price.  But I’m no longer certain given the public’s decided indifference.

It’s as though the nation has decided collective amnesia about what we allowed in all of our names is the prudent option.  Justice, be damned.

This is all of a piece: decisions in direct contradiction to the established precedents, treaty obligations and the rule of law, all pushing a warped theory of executive dominance in pursuit of a unilateral stranglehold on power within the governmental framework. The OLC opinions which issued forth laying the groundwork for these theories were no accident.

Sadly, the absence of clear guidance, action or transparency from either Congress or the White House to re-establish legal framework on these issues is a policy choice as well.

Inaction on the rule of law speaks volumes.

Dawn Johnsen’s nomination to head OLC has been languishing for more than 6 months (subs. req.). Why?  Because it can.  (more…)

Because I needed a giggle.

And thought you’d enjoy one, too.

Roomba kitty meets Herbie Hancock.

Mwahahahahaha.

Sen. Sheldon Whitehouse offers to bring a little hardball to the OLC proxy fight. From the National Law Journal (subs. req.): One vocal Johnsen supporter, Sen. Sheldon Whitehouse (D-R.I.), said he’s eager for a Senate debate about the office. “I’m happy to spent the whole [time] talking about what the Bush administration did to the Office of Legal Counsel and why it needs to be cleaned up….

AHIP, the insurance industry interest group that lobbies for insurance interests on the Hill and elsewhere, is launching its first PR salvo into the health care debate. According to Politico, they are spending seven figures to do it.

And they’ve launched a super-swell website touting an “American Solution” to healthcare that, inadvertently I’m sure, fails to mention any public option or single payer perspective.

Randall Terry is at it again. Because apparently the half-skull poster of Sonia Sotomayor and exhortations to his unstable flock about the Angel of Death weren’t nearly enough to get him the fundraising haul attention he needed. In any polite society, his brand of dangerous stoking of the fires of hell would get him shunned by decent people. In fact, it’s well past time that GOP lawmakers were asked — clearly and without any ambiguity — what they think of Terry’s fire and brimstone violence stoking on behalf of their policy agenda.

We’re all individual threads, but together, we become infinitely stronger. A reader sent this along and it made me smile. Thought I’d share it with all of you: I became Travis’ big brother when he was just 6 years old. He was a cute kid who lived with his Aunt who was and continues to be a terrific influence in his life.