On April 16, the Supreme Court heard arguments in Kennedy v. Louisiana, a case challenging a Louisiana law making child rapists eligible for the death penalty, even when the crime did not also involve a homicide.  Only five other states have similar laws. 

Patrick Kennedy, the defendant in Kennedy v. Louisiana, was sentenced to death for raping his eight-year old step daughter.  Child rapists deserve society’s harshest punishment, short of the death penalty, for their abhorrent crimes. Murderers permanently end the lives of their victims; child rapists also devastate the lives of their victims, but they do not take life and their victims have the hope of recovering to live a normal life.

Child rape is an utterly deplorable crime, but the death penalty is not appropriate for this – or any - non-homicidal crime.  

First, where would we draw the line? What kinds of crimes are so egregious that, even if a homicide has not occurred, they should be punishable by death? The list is potentially endless. Allowing the death penalty to be imposed for non-homicidal crimes will likely dramatically increase the number of people subject to the death penalty, will fuel the vague and arbitrary manner in which capital punishment is currently imposed, and runs counter to the sensible consensus in the legal community that the death penalty should be reserved for only those criminals who are the worst of the worst.  Applying the death penalty to someone who has not taken a life is cruel and unusual and thus violates the 8th Amendment. 

Second, aside from the constitutional issues, there are convincing policy reasons to oppose the death penalty in these kinds of cases. Child advocates note that children – and especially those who have been traumatized – are easily influenced by their elders. The risk that these children will be confused and even mistaken about what happened is high, and thus so is the risk of a wrongful conviction. In fact, the victim in the Kennedy case first identified someone else as the perpetrator. It was only after adult intervention that she changed her story and accused her stepfather.   Mr. Kennedy has consistently maintained that he is innocent.

Third, these same child advocates worry that the death penalty for this kind of crime will make it even less likely that the victims will report the assault to the authorities. This is because so many of the perpetrators are family members and close friends. Experience shows that it is already difficult for these children to accuse those who are close to them. Potentially sending them to their deaths would, these child advocates agree, dramatically decrease the likelihood that children would report these crimes in the first place.

The United States has not executed anyone for non-homicidal rape since 1964. In 1977, the Supreme Court ruled that the use of capital punishment for adult rape was unconstitutional. That ruling, in Coker v. Georgia, dealt with the rape of a 16 year-old woman, who the Court considered an adult, apparently because she was married. While the Court’s decision did not specifically mention child rape, it has been widely considered to bar the death penalty in rape cases where a homicide did not occur. Justice Byron White, writing the Court’s decision, stated, “[T]he death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.”  

The Supreme Court should look to the ruling in Coker as it considers the Kennedy case. Even though the facts of the case now before the Court are tragic, they should not change the reasons why the Court ruled the way it did in Coker. The death penalty is still unique in its severity and irrevocability, and is excessive for anyone who does not take human life.

In recent years the Supreme Court has narrowed capital punishment’s reach in other ways, finding, for example, that the death penalty is cruel and unusual for certain groups of defendants. In 2002, in Atkins v. Virginia, the Court ruled the execution of a person with mental retardation is unconstitutional, and in 2005, in Roper v. Simmons, the Court ruled it was unconstitutional to execute juveniles who were under the age of 18 when they committed their crimes. The Supreme Court had it right in those decisions, and in Coker. To deviate from the decision in Coker and uphold the Louisiana law at issue in Kennedy would be a giant step in the wrong direction. The Court should stay the course and allow capital punishment to be imposed only for the “worst of the worst.”

On March 24, the war in Iraq entered its sixth year. The anniversary prompted many Americans to reflect on our involvement in that particular conflict, but it should also remind us that we must constantly reexamine not only when or where we go to war, but how we go to war. The past half century has seen Congress willingly yield its constitutional duty to declare war to the Executive. In conflict after conflict, Congress has shirked its obligation to make the crucial decisions about initiating, and limiting, the use of American military force. 

Congresses controlled by both parties have granted presidents of both parties unchecked power to deploy American troops abroad. 

This was not the role that the founders intended Congress to play in military conflicts. Under our Constitution, Congress is charged with determining when and where to initiate force, while the President - as Commander in Chief - leads the tactical side of military operations. However, we now find that, through congressional acquiescence, the Executive branch has assumed both of these roles, leaving most substantive war-making powers in the hand of only one branch of government – indeed, in the hands of one person. Just the opposite of the constitutional design, which recognized that these crucial decisions should not be made by just one person, and contemplated that the peoples’ representatives – Congress – should make them.

For more than 50 years, presidents have failed to ask Congress to declare war, and rather than insisting on its constitutional obligation, Congress has instead shirked it.  In 1973, Congress attempted to reassert some of its authority by passing the War Powers Act, which permitted the president to authorize the use of force for only sixty days without prior congressional authorization. Unfortunately, the War Powers Act failed to sufficiently reassert Congress’ duty to determine whether a conflict should be initiated. Once the president has used this sixty-day “free pass” to make initial deployment decisions, Congress faces a choice of demanding the troops’ withdrawal – a risky political route -- or of taking the far easier course of simply acquiescing.  

In June 2005, the The Constitution Project’s War Powers Committee, co-chaired by former representatives Mickey Edwards (R-OK) and David Skaggs (D-CO), issued a report and recommendations to restore war powers to their proper constitutional alignment. According to Deciding to Use Force Abroad: War Powers in a System of Checks and Balances, Congress must authorize armed conflicts abroad beforehand in all situations except the most urgent and defensive.  The President must seek the authorization of Congress and supply it with all the necessary information needed to make a deliberate and transparent decision.  Congress must also have the ability to revise or rescind its authorization, and through the “power of the purse” must exercise the power to fund (or not fund) armed conflict, therefore checking the President’s power to unilaterally wage war.  Finally, in order to ensure compliance, the courts must have the power to decide whether the use of force has been properly authorized.

On March 13, the House Subcommittee on International Organizations, Human Rights, and Oversight heard testimony on this important issue. The lead witnesses were Representatives Edwards and Skaggs, who testified as co-chairs of the Constitution Project’s War Powers Committee. In his testimony, former Representative Edwards said that “Congress must clearly reassert the constitutional principle that only the people’s representatives have the authority to send American men and women to war, and courts should stand ready to assess whether these decisions have been lawfully made. Failure to do so may well result in a future president exercising what - by default - has come to be seen as the president’s unilateral authority.” 

Congress must assume the constitutional power that our founders contemplated and we must demand that it do so. Fortunately, in September 2007, Representatives Walter Jones (R-NC) and William Delahunt (D-MA) introduced the Constitutional War Powers Resolution, an important first step toward this end.

Ongoing conflicts in the Middle East, Africa, and elsewhere make this one of the most important issues facing our country. Congress, and our new President, should seize this opportunity to uphold the Constitution, and return to the people and their representatives the vital decision of when and where to go to war.

Last month, the Metropolitan Police Department (MPD) released a report examining the District of Columbia’s video surveillance system. The report concludes that since the District expanded its video camera system into residential neighborhoods in August of 2006, those neighborhoods have seen a drop in some types of crime. But, what is remarkable – and admirable – about this report is not the statistics it includes nor the conclusions it reaches, but the fact that such a thorough examination was done at all. Although important questions remain to be answered, the MPD should be applauded for undertaking such a detailed study, and for asking many of the right questions.

Increasingly since September 11^th, communities across the country have rushed to install video surveillance systems with little evidence that such technologies are effective in combating crime. So it is encouraging that the District has sought to compile crime statistics for areas within the cameras’ view and compare them to District crime levels as a whole, as well as to the experience in the surveilled areas prior to installation of the cameras. According to the MPD report, violent crime dropped 19% in areas within 250 feet of the District’s 48 cameras that were installed in 2006, compared to a 1% increase in violent crime District-wide. Property crimes only rose 2% in 2007 in areas where cameras were installed, while the year immediately prior to the deployment of cameras these areas had seen a 25% increase. These are indeed positive signs that the city’s video surveillance system may be a useful supplement to more traditional crime-fighting methods.  

The level of transparency in the report is commendable. The report lists the locations – by city block – of all eighteen “homeland security” cameras that are installed to observe public buildings and spaces in the downtown area. It also identifies the intersections at which each of the seventy-three cameras in the “neighborhood-based” camera system has been installed. Further, MPD outlines the procedures they follow in operating the system, including safeguards to protect privacy rights. For example, the report notes that the cameras are not equipped with certain technologies that may be more intrusive of privacy rights – such as “audio overhear” capabilities or biometric technologies such as facial recognition.

However, this report is only the first step on the right path. As the report’s authors recognize, this is an “initial evaluation.” MPD must continue to study the system’s effectiveness, and many important questions remain to be asked and answered. First, since the cameras are obvious to passersby, to what extent are the cameras simply displacing crime to neighborhoods outside the cameras’ view?  Further, the D.C. Police report fails to address the overall cost effectiveness of the city’s video surveillance program.  The report documents that it has cost $3.8 million to purchase, install and operate the District’s cameras, and that ongoing maintenance costs an additional $600,000 each year. Put another way, the total cost of operating the system for five years is the same as employing more than 115 full-time beat officers for that same period.  During the eighteen months covered by the report, 144 images from the video surveillance system were retained as evidence supporting criminal investigations or potential civil liability claims. Only four of these images included actual footage of serious violent crimes in action. 

D.C. Police must examine whether there are better ways to spend this $4 million.  While the report calls the cameras a “force multiplier,” it seems unlikely that a stationary camera can even come close to supplanting additional badges on the street. Further, some studies have indicated that simple, cheap solutions such as improved street lighting can reduce some types of crime as much or more than video cameras can.

Finally, MPD must continue to monitor the impact that a permanent video surveillance program has on the privacy rights of District residents. The bipartisan Constitution Project’s report, Guidelines for Public Video Surveillance, urges that surveillance systems be carefully designed to serve a specific law enforcement purpose, and to minimize the impact on residents’ privacy rights and protected First Amendment freedoms.  The MPD’s recent report is only the first step toward this end. The city must continue to assess whether the system’s effect on crime truly outweighs both its financial costs and its effect on civil liberties.

In short, the overall effectiveness of this system has not yet been proven to justify its permanent presence on the streets of D.C.   Responsible, limited use of video surveillance can effectively supplement traditional law enforcement practices. But the D.C. Council and MPD must keep as close an eye on the use and effectiveness of the camera as the cameras do on District neighborhoods. Before approving any initiative to install more cameras above our city streets, or to make existing ones permanent, our elected officials should ask themselves whether the cameras have simply displaced embedded crime to other areas, how many cameras are needed in which neighborhoods, and what price – in terms of time, money, and individual privacy – we are willing to pay to be watched.

On October 9^th 2007, the Supreme Court declined to hear the case of Khaled El-Masri, a German citizen who for four months in 2004 was detained, tortured, and repeatedly interrogated at a CIA prison in Afghanistan. Mr. El-Masri was eventually released after it was discovered that he was not a terrorist, but merely someone who had a similar name to a known terrorist. When Mr. El-Masri filed a lawsuit against former CIA Director George Tenet seeking to hold the U.S. government accountable for this treatment, a federal court dismissed the case. The executive branch asserted the “state secrets privilege,” claiming that allowing the suit to proceed would “present a grave risk of injury to national security” and both the district court and the U.S. Court of Appeals for the Fourth Circuit accepted this claim. No judge ever reviewed any of this purportedly secret evidence to independently determine the validity of the claim. 

In a Talking Justice post last year, I noted how the Supreme Court had the opportunity to hear the El-Masri case and clarify that courts must independently review any claims by the executive branch that evidence should be withheld because it might harm national security. But now that the Supreme Court has refused to accept review, Mr. El-Masri cannot rely on American courts to hold the U.S. government accountable, and we must turn to Congress for the needed reforms.

As I discussed last year, the state secrets privilege was established in its modern form by the 1953 case United States v. Reynolds, a suit by the widows of three men employed as private individuals by the Air Force who died in a crash of a B-29. In Reynolds, the Supreme Court accepted the Executive’s argument that disclosure of an Air Force accident report risked revealing vital national security secrets, and refused to require that the report be produced to the district judge for an independent assessment. Nearly 50 years later it was revealed that the accident report contained not state secrets, but only numerous accounts of negligence that would have seriously harmed the government’s case and presumably embarrassed the Air Force. Moreover, since Reynolds, the privilege has been expanded not only to bar disclosure of particular items of evidence, but to foreclose litigation of entire cases in which the state secrets privilege is asserted. Cases like Mr. El-Masri’s have been dismissed at the pleadings stage, before the opportunity for any discovery.

On January 22, Senator Edward Kennedy (D-MA) – joined by Senators Arlen Specter (R-PA), and Patrick Leahy (D-VT) – introduced legislation that would reform the state secrets doctrine to ensure independent judicial review of evidence the Executive asserts is privileged. Similar legislation is expected to be introduced shortly in the House of Representatives. Senator Kennedy’s legislation calls for judges to make independent, in camera reviews of evidence that the government claims contains state secrets. This would ensure that a judge assesses the validity of a state secrets claim without any risk that the evidence in question might be publicly released. Independent review is the most important feature of any attempted reform of the state secrets doctrine. The Executive cannot be allowed to block all challenges to potentially illegal and unconstitutional government programs simply by claiming, without any independent review, that all the evidence is a state secret.

On January 29,^th the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held an oversight hearing on the use of the state secrets doctrine. At the hearing, the main argument of those opposing reform was that judges are not capable of making the determination as to what evidence should be considered a state secret; rather, they urged that “utmost deference” should be given to the executive branch, claiming it knows best what could potentially threaten national security. However, in a statement submitted to the Subcommittee, William Webster, former federal judge and former Director of the FBI and the CIA, wrote that federal judges are “fully competent to perform an independent review of Executive Branch assertions of the state secrets privilege.” In addition, Patricia M. Wald, a former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and a member of the Constitution Project’s Liberty and Security Committee, noted that independent judicial review is necessary “if our courts are to continue their best tradition of constitutional guardianship.”

It is clear that some evidence must be protected from public exposure for national security reasons. However, the aftermath of the Reynolds case demonstrates without a doubt that those in the best position to make this judgment are impartial federal judges, and not members of the executive branch who have a stake in the outcome of a case in which the state secrets privilege is claimed and who may be seeking to avoid accountability and embarrassment. Congress should act now to reform the state secrets privilege to uphold the basic fairness of our justice system and our constitutional system of checks and balances.

Running for President of the United States is a little bit like living under a microscope for two years. You are asked by a steel worker about your position on import tariffs, by a couple with a child on the way about school vouchers, and by a local employer about immigration. You are asked, every day, about dozens of policies – both existing and proposed – and are expected to answer every question. In such a climate it is hard to imagine that any important question might go unasked, or that any question of national significance might go unanswered.

But while we may know a great deal about the candidates’ plans to curb climate change and their proposals to reform health care, we know remarkably little about their views on our constitutional system of checks and balances and the relative powers of the President, Congress and the courts. Almost nobody asks if a candidate would support unchecked presidential authority to order spying on Americans, or if he or she plans to ignore congressional mandates. Almost nobody asks about a candidate’s concern for our nation’s founding document.

When George W. Bush became president, few of us anticipated the assaults on the rule of law that our country has faced. Few anticipated that presidential signing statements, NSA warrantless wiretapping, indefinite detention and torture of so-called enemy combatants, and the failure to cooperate with Congress would dominate the news. In each of these matters, and others like them, the Bush administration has overstepped its authority, ignoring the Constitution, the role of Congress and the courts as separate and independent branches of the federal government, and disregarding limits on the executive branch established by our system of checks and balances.  

Fortunately, at least two members of the fourth estate have asked the 2008 presidential candidates their views about these matters. In the December 16, 2007, issue of CQ Weekly, David Nather examined each candidate’s experience with and treatment of executive power. And on December 22, 2007, Boston Globe reporter Charlie Savage asked the then-twelve major candidates their views about presidential authority.

Savage, winner of last year’s Pulitzer Prize, as well as the Constitution Project’s Award for Constitutional Commentary, explained it this way: “In 2000, George W. Bush and Dick Cheney were not asked about presidential power, and they volunteered nothing about their attitude toward the issue to voters. Yet once in office, they immediately began seeking out ways to concentrate more unchecked power in the White House - not just for themselves, but also for their successors.”

It is tempting to believe that the repeated assaults on the rule of law will end on January 20, 2009, that our Constitution can withstand mistreatment by any president, no matter what his or her political affiliation. Tempting, but naive. The current administration has worked for seven years to increase presidential power at the expense of the other two branches of government. Its principal justification – the need to keep the country “safe” – is one that will appeal to any president. At the end of his book, Takeover: The Return of the Imperial Presidency, Charlie Savage writes: “The accretion of presidential power, history has shown, often acts as a one-way ratchet: It can be increased far more easily than it can be reduced.” New presidents may conclude there is no need to eliminate the powers their predecessors accrued because they will simply exercise better judgment in using them. 

Nine of the candidates offered revealing answers to Savage’s questions, and they are well worth reading. They give voters considerable insight into their views about our system of checks and balances and their readiness to cede some power to restore the constitutional balance. Ultimately, the willingness to answer at all proved notable: three leading candidates (Mike Huckabee, Rudy Giuliani, and Fred Thompson) refused to answer any of the questions. 

Restoring the rule of law in America and the proper functioning of our system of checks and balances will require a proactive effort on the part of the next president and, by proxy, the American people. While the prominent political issues (the Iraq war, immigration, education, etc.) are indeed important, how the next president interprets his or her powers under the Constitution will dramatically affect whether and how they address all other issues, and whether and how our rights are protected.

In Herrera v. Collins, the late Chief Justice William Rehnquist wrote that the U.S. criminal justice system, “like the human beings who administer it,” will always be “fallible.” He wrote this in 1993, before the stream of DNA and other exonerations proved beyond a doubt that this country’s capital punishment system is not just fallible. It is broken. The debate is no longer just about the morality of capital punishment per se. It is about whether this country has the political will to fix the extensive flaws that afflict the system and if it doesn’t, whether we will have the courage to finally acknowledge that the risk of convicting and even executing the wrong people is too profound and we can no longer countenance it. 

In Mandatory Justice: The Death Penalty Revisited, the Constitution Project’s Death Penalty Committee issued a consensus report and recommendations for urgently needed systemic reforms. Committee members comprise both supporters and opponents of the death penalty, with experience in every aspect of the criminal justice system. Their very first, and most important, recommendation was that, for the sake of fairness, accuracy, and public confidence in the system, the government must provide capital defendants with experienced, fairly compensated lawyers if they cannot otherwise afford them. 

Study after study has demonstrated what happens when the government fails to do so. For example, according to “A Broken System,” a landmark, two-part Columbia University study released in 2000 and 2002, a stunning two-thirds of all state capital convictions from 1973 to 1995 were overturned in federal courts because of egregious constitutional errors. Some people who want to disparage these studies describe these errors as “mere technicalities.”  First, no constitutional violation should ever be considered a “technicality.”   Second, the errors went to the heart of a fair trial and an accurate result. 

Good defense lawyers are essential to make sure that egregious errors do not occur in the first place. They can, for example, make sure the case is properly investigated, discover the holes in the prosecution’s evidence, including critical exculpatory evidence that incompetent lawyers too often miss, identify prosecutorial misconduct, and challenge improper forensic claims. 

This country has known about this broken system, and has countenanced it, for too long. We countenance the destruction of innocent lives when we convict the wrong person. We countenance the agony of family members of crime victims who are forced to relive the most painful events of their lives if the right person is finally identified and another trial is held. We countenance the creation of new crime victims when we convict the wrong person and allow the true perpetrator to remain free to commit more crimes. 

We know not only what’s wrong, but what to do about it. We know that, at the very least, the government must provide defendants with competent, experienced, and adequately compensated defense lawyers if they cannot afford to hire their own.

Yet, as a conference the Constitution Project held last month at the Law Library of Congress demonstrated, experts from every part of the criminal justice system – including federal and state policymakers, prosecutors, judges, scholars, and defense lawyers -- are virtually unanimous that Strickland v. Washington, the 1984 landmark case creating standards to enforce the “right to the effective assistance of counsel,” has failed to achieve its goal. These experts described the dearth of expert public defender offices around the country, the defense lawyers struggling to defend their clients without adequate resources, experience, and training, and the resulting tragic mistakes and injustices. And if that weren’t enough, they condemned the courts, Congress, and state legislatures for creating the many procedural obstacles that prevent the system from ever correcting its errors. 

Strickland’s author, former Supreme Court Justice Sandra Day O’Connor, keynoted the conference. She acknowledged that the ruling produced "many years of additional litigation" and that "we have so many questions today" about how to provide effective lawyers for criminal defendants who cannot afford to hire their own. 

We know that prosecuting a capital case costs millions more than one in which the punishment is imprisonment.  We know how costly it is to retry a case when we discover we’ve convicted the wrong person. And we know that, instead, we could use these funds to provide badly-needed resources for our criminal justice system, including the courts, prosecutors, police, and victim assistance – as well as defense lawyers.

But it has long been clear that governments at the state and local levels are simply unwilling to provide the money for this most basic of constitutional rights, this most basic guarantee of a fair and accurate trial. Bryan Stevenson, another conference participant who is executive director of the Equal Justice Initiative in Alabama, said it best at the conference:  "The system treats you better if you are rich and guilty than if you are poor and innocent." 

It is time for Americans to be realistic. It is time for us to ask ourselves whether we will continue to countenance a system that inevitably creates the profound risk that we are convicting and executing the wrong people. This is the moral question we must face, and finally resolve.

Rape charges against the Duke lacrosse players were dropped last April, and Michael Nifong, the District Attorney who brought the charges in March 2006, was disbarred in June 2007. The rape charges were dismissed after the state’s Attorney General took over the investigation and determined that the defendants were innocent and that there had been a “tragic rush to accuse and a failure to verify serious allegations.” 

On August 31^st, Mr. Nifong was sentenced to 24 hours in jail and a $500 fine for criminal contempt.  A week later, he served his day in jail. He is not eligible to be reinstated to the bar until 2012. But, is Mr. Nifong’s punishment sufficient, given that the young athletes must spend the rest of their lives coping with the consequences of his conduct? 

The case was recently back in the headlines because last month, the players filed multi-million dollar lawsuits against Nifong, alleging that his reckless and false prosecution destroyed their reputations.  But even if he is held accountable through the players’ civil lawsuit, will his punishment be sufficient given the damage he caused to public confidence in our criminal justice system?  And is he an exception or are there other prosecutors solely bent on winning, no matter what the evidence says?

An exhaustive 1999 study by the Center for Public Integrity found that, since 1963, the homicide convictions of at least 381 defendants nationally were thrown out because prosecutors concealed evidence suggesting that the defendant was innocent or presented evidence they knew to be false. Not one of those prosecutors was ever convicted of a crime. Not one was ever barred from practicing law. Instead, many were promoted or have become judges. Of those 381 defendants, 67 had been sentenced to death. Nearly 30 of those 67 were subsequently freed.

According to the study, “[w]ith impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases. They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs. They do it to win. They do it because they won't get punished.”

Little has changed in the nearly ten years since that study. State bar associations routinely discipline lawyers for misappropriating even small amounts of funds held for their clients. But when a person's liberty —or life— is at stake and prosecutors withhold evidence so significant that its disclosure would have created "a reasonable probability of a different outcome," Kyles v. Whitley, 514 U.S. 419, 434 (1995), it is hard to imagine any more reprehensible conduct by a lawyer, and yet this behavior goes unpunished. 

Astonishingly, this practice of withholding relevant evidence occurs right under the noses of the judges who make these findings of misconduct. And these judges know exactly what they should do when prosecutorial misconduct occurs. The American Bar Association’s Code of Judicial Conduct instructs the courts to inform the appropriate authority whenever a judge knows that a lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as an attorney. 

Unfortunately, the only conduct in criminal cases that ever seems to be referred to state bar associations involves that of defense counsel. One searches nearly in vain for referrals of wayward prosecutors, let alone criminal prosecutions of them.  

In the Duke case, it appears that the system did work.  These three young white men, with families wealthy enough to send them to Duke and resources sufficient to hire lawyers and investigators, successfully challenged Mr. Nifong’s outrageous conduct.  Their sustained efforts led not only to the students’ complete exoneration, but also to the investigation and eventual disbarment of their out-of-control prosecutor. 

Why is it that the system worked for them, and for virtually no one else? 

Too often, the distressing reality is that it takes wealth to ensure effective lawyering, and that those with insufficient resources end up with inexperienced and under-resourced, or even no, lawyers.  In cases involving prosecutorial misconduct, in which the defendant does not have the resources to mount a defense and challenge the misconduct, the result is vastly different from that of the Duke case.

We should demand more from our prosecutors, whose obligation is to do justice. We should demand more from our courts and bar associations, institutions entrusted with policing the legal profession and protecting us from lawyers who take unfair advantage or even cheat.  The wealth of the accused should not determine whether an unethical prosecutor is turned over to the bar association for investigation and prosecution. Our criminal justice system owes us no less if we are to be truly a land of “equal justice under the law.”

The continuing reports about the politicization of Justice Department have shaken the confidence of Americans that our laws are being “faithfully executed.” This is the Constitution’s charge to the President, and thus to the Justice Department. While the Department can never be completely ‘apolitical’ because the Attorney General is a political appointee of the President, it is supposed to ensure the fair and impartial administration of the laws. If Michael Mukasey, the former judge who is President Bush’s nominee to succeed Alberto Gonzales as Attorney General, is confirmed, he must take immediate steps to restore our confidence in the Department.  

He must, for example, heed the alarms sounded by Harvard Law Professor Jack Goldsmith, who resigned as head of the Department’s Office of Legal Counsel (OLC) in 2004.  OLC’s mission is to advise the executive branch about the legality of its proposed actions, but Goldsmith’s recent book, The Terror Presidency, and his October 2 testimony before the Senate Judiciary Committee, describe how OLC instead manipulated the law to justify actions that had no valid legal basis. He characterized one of those actions -- the NSA’s wiretapping program -- as the “biggest legal mess I have encountered.” Despite his view that at least some aspects of the program were clearly “without legal footing,” there was enormous political pressure to simply approve it rather than to ask Congress to change the law. The program went forward in a manner designed to avoid any congressional or public scrutiny of its legal justification (or, apparently, its lack of justification).   Ultimately, the program was modified, but only because many of the Department’s top leaders, including the Attorney General, Deputy Attorney General, and Goldsmith, threatened to resign if it wasn’t.

Just last week, the New York Times revealed how in 2005, shortly after Alberto Gonzales became Attorney General, the Department issued secret opinions that amounted to an “expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” These opinions were approved over the objections of the then-Deputy Attorney General. Shortly afterwards, Congress passed – and President Bush signed – a law that prohibits these techniques.  Yet during congressional consideration of the law, and even after it was passed, the Department never revealed that it had in fact authorized these techniques. Even now, despite outraged congressional demands, the White House is refusing to release the documents.

The Times article also recounts that former Attorney General John Ashcroft called John Yoo, Professor Goldsmith’s predecessor at OLC and the author of many controversial legal opinions, “Dr. Yes” for his failure ever to tell the White House that its policies were illegal.

Judge Mukasey must also address the apparent politicization of the Department’s hiring process. In an April 2007 letter to the House and Senate Judiciary Committees, anonymous Department employees wrote that the Department’s hiring process was “consistently and methodically being eroded by partisan politics.” They particularly singled out the Attorney General’s Honors Program through which the Department hires recent law school graduates.  Career attorneys, who had handled this hiring program through prior Republican and Democratic administrations, were removed from hiring committees, and the program was turned over entirely to political appointees. Consequently, most of the rejected applicants had interned for a congressional Democrat, clerked for a judge appointed by a Democratic president, worked for a “liberal” cause, or otherwise appeared to have “liberal” leanings. Outstanding graduates from the nation’s leading law schools failed even to secure interviews. 

One of the Department’s most sensitive and important duties – the prosecution of crime – appears also to have been politicized. Nine U.S. Attorneys were fired in 2006, and according to credible allegations, their firings stemmed from their refusal to initiate prosecutions based, as they saw it, on politics rather than merit. The Department’s Inspector General is now investigating these firings as well as the allegations that the Department’s process for hiring new attorneys relied upon improper political considerations. Because of the turmoil at the Department, most of its top-level positions are now vacant. 

One of the principal criticisms of Alberto Gonzales’ tenure as Attorney General has been that Mr. Gonzales appeared to believe that he was still the White House Counsel. Thus, he seemed more focused on finding legal justifications for the president’s desired programs than on serving as the leader of the Department of Justice, charged to dispense independent and impartial justice. 

Judge Mukasey is scheduled to appear before the Senate in two weeks to answer questions about his qualifications to be our next Attorney General. If he is confirmed, he faces many urgent challenges. He has a reputation for independence, but the nation is eager to hear his assurance that he will exercise that independence, that he will reverse the politicization of the Department, and that he will restore the rule of law. Perhaps most importantly, he must assure us that he will, when appropriate, say no to the White House.  We cannot afford another Dr. Yes. 

Judges in our country are familiar with controversy.  Their rulings indicate a preference for one argument at the expense of another.  At its core, the judiciary exists to mediate disagreements, whether between individuals, corporations, or even other bodies of government. In this sense it is always at the center of a whirlwind of differing arguments, prepared nonetheless to deliver justice through a good-faith interpretation of the law. Judges are able to protect our basic rights and decide cases fairly only to the extent that they have the resources to do so.  When our courts become a target for budget cuts, they may be unable to carry out their role as a critical component of our constitutional system of checks and balances. 

Court systems are frequently at the mercy of the executive and legislative branches – the political branches of our system of government -- for the funding they need to carry out these constitutional duties. Contrary to the courts, these political branches are designed to be responsive to the public. Without public pressure on the legislatures and governors who ultimately determine the courts’ budgets, other demands on the public funds are likely to have priority.  The result may be deep cuts in state judiciary budgets that make meaningful access to justice increasingly difficult to obtain. 

Because many of us have never had a legal dispute that has landed us in court, we may not fully appreciate the role of the courts in defending our rights and freedoms.   We should not, however, make the mistake of thinking that the court system is for someone else. The courts resolve disputes about consumer rights, the environment, domestic affairs (such as divorces and custody disagreements) civil rights, privacy, and a host of other matters. Even if we are not ourselves before the courts, their decisions in other peoples’ cases can affect all of us.

A recent Constitution Project report, The Cost of Justice: Budgetary Threats to America’s Courts, details the wide-ranging impact of state budgetary cuts on our system of justice. These cuts have limited the number of judges available to decide disputes, staff assigned to manage case loads, and hours of operation. Basic needs – such as security and supplies -- may not be met. In Oregon, for example, dramatic cuts to the courts’ 2003 budget meant that every courthouse was closed to the public on Fridays, more than 100 court employees were laid off, and staff hours were cut by 10%. 

Insufficient funding has forced courts to reduce the number and quality of special programs that ensure meaningful access to justice, such as interpreters for those who do not speak English well, Alternative Dispute Resolution programs that help parties to a dispute settle their differences outside of court, and guardians Ad Litem who assist people who are unable to otherwise protect themselves in court. 

Funding cuts have affected other agencies and activities that are sometimes included in court system budgets, such as public defender programs and probation and parole offices. The Oregon budget cuts forced the deferral of all felony property crimes because the courts could not afford to provide defendants with lawyers. One thief was arrested and released 17 times.

Sometimes the results of these budget cuts are truly tragic. In Minnesota, officials cut the 2003 budget for the Guardian Ad Litem program by 10%, leaving children without a guardian in family court to represent their interests in paternity disputes, custody evaluations, and parental disputes. A convicted sex offender was charged with three counts of felony sexual molestation involving a girl who had been placed in his permanent custody by the courts just months earlier. The court evaluator later stated that he wished the girl could have been appointed a guardian ad litem who could have protected her by researching her wishes and her family history. Similarly, in 2003 in Washington state, budget shortfalls not only delayed criminal trials, resulting in the release of dangerous criminals, but a 3-year old girl was kicked to death by her substance-abusing mother; social workers had reunited them rather than navigate overloaded trial calendars and courtroom shortages.

The Constitution Project report recommends ways to ensure that the courts have sufficient funding. Courts that now have to rely on legislatures and governors to request funding for them can instead control their own funding requests and budgets.  Mandatory formulas for judicial funding and restricting executive and legislative power over courts’ appropriation requests can also help.

Legislators and governors need to put aside political considerations to make sure that our courts are able to carry out their constitutional obligations. Similarly, the public needs to communicate to their elected representatives that we support adequate funding for the courts. As G. Gregg Webb and Keith Whittington, two experts on judicial independence have noted, “[W]hile there are things [people] may have to give up in trying fiscal times, justice cannot and must not be one of them.”

Around this time every month I pay my phone and internet providers for their services. In the wake of recent criticisms of the National Security Agency’s (NSA) warrantless surveillance program, though, I’m beginning to wonder exactly what services my bill covers. For instance, is my provider one of the telecommunications companies that has violated the Foreign Intelligence Surveillance Act (FISA) and other privacy laws by handing over customer phone records to the NSA? If so, what is the monthly surcharge for violating the civil liberties of Americans? Is there a tax that subsidizes the destruction of constitutional checks and balances? 

Although some information has been pieced together since The New York Times disclosed the existence of the NSA program in December 2005, the specifics of the surveillance program remain largely shrouded in mystery. We do know, however, that the NSA’s domestic surveillance operation was designed to circumvent FISA’s requirement that the administration seek a warrant from the FISA court before intercepting any American’s phone calls or emails. In fact, the May 2007 testimony of former Deputy Attorney General James Comey revealed that in March 2004, the administration authorized the spying program over the objections of senior-level Justice officials, including Attorney General John Ashcroft and Acting Attorney General Comey, that it was “without any legal basis.” After many high-level Justice Department officials including the director of the FBI reportedly threatened to resign, the administration eventually agreed to implement changes demanded by the Justice Department. We do not know the nature or extent of the changes, but the fact that the President initially reauthorized a program that his own Justice Department told him was illegal is deeply disturbing. 

The legal challenges to the NSA wiretapping program included a lawsuit filed by the ACLU on behalf of itself and a group of journalists, lawyers and academics who regularly communicate with international contacts and who fear those communications have been monitored through the NSA program. In August 2006, a judge of the U.S. District Court for the Eastern District of Michigan declared the warrantless wiretapping program unconstitutional and illegal. However, on July 6, 2007, the U.S. Court of Appeals for the Sixth Circuit vacated that decision, finding that the plaintiffs lacked “standing” to bring the lawsuit because they could not demonstrate they had actually been harmed by the NSA program. In other words, the program is so secret that none of the plaintiffs could prove they had actually been wiretapped.

Given the secretive nature and intent of the surveillance program, it will be difficult for any individual plaintiffs to show a tangible injury caused by the government’s wiretapping. The Sixth Circuit’s opinion demonstrates that it is unlikely that anyone will be able to obtain judicial review of the NSA program. With our federal courts seemingly out of the picture, the onus is on Congress to provide much needed oversight and uphold our constitutional system of checks and balances that is threatened by the NSA surveillance program.

In January 2007, the administration announced that it had adopted a new approach to the NSA surveillance program, and that a judge of the FISA Court had issued orders authorizing the Executive branch to conduct such surveillance. Yet the administration has never publicly revealed any information about the new approach, making it difficult to evaluate. 

Moreover, if, as the administration claims, they have now developed a strategy enabling the NSA to conduct the domestic surveillance program in compliance with FISA, why did the administration seek to amend FISA to permit additional surveillance without court review? Specifically, in April 2007, the administration introduced proposed amendments to FISA, claiming that the amendments would “modernize” the 1978 statute. However, FISA has been repeatedly amended since 1978, including in the 2001 USA Patriot Act, and few of the proposed changes have anything to do with modernization. Rather, the proposed amendments would change FISA’s definition of “electronic surveillance” to allow the warrantless interception of the content of all international phone calls and emails of Americans. This clearly violates the original intent and purpose of FISA and the administration has not explained why this radical redefinition is necessary. Another White House proposal asks for retroactive immunity for the telecommunication companies that violated FISA. Retroactive immunity for an entire industry in the absence of a full disclosure of the facts is wholly unprecedented. 

Last month, the Constitution Project’s bipartisan Liberty and Security Committee renewed its objections to the NSA surveillance, and called for a thorough, meaningful investigation. In their statement, our committee members commend Congress for initiating an investigation, but assert that it is essential that Congress not amend FISA until 1) the President has affirmed that FISA’s procedures are the exclusive means for foreign intelligence surveillance of American residents; 2) Congress has obtained a full understanding of how the NSA program has operated to date; 3) the administration has clearly explained the proposed changes to FISA; and 4) Congress has assessed what the real needs of modernization may be. 

Congress has an obligation to the American people to put an end to the NSA’s unlawful surveillance program and to uncover exactly what damage this program has caused to the individual liberties central to the American way of life.   Sadly, just last weekend, Congress abdicated that responsibility in its rush to adjourn for its August recess. It passed amendments to FISA that, as the ElectronicPrivacyInformationCenter described it, “will permit warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing.” For more information, go to www.epic.org 

Congress failed to preserve the critical check provided by FISA. Fortunately, the amendments sunset after 180 days. When it returns from its August recess, Congress will have another opportunity to fulfill its obligation, to fully examine the impact of these amendments, and to make needed changes. For a start, Congress must insist that the White House provide it with the details of the NSA’s surveillance activities. But for now, I’ll keep wondering every time I pay my phone bill. 

Comedy Central, home to political satirists such as Jon Stewart and Stephen Colbert, has launched a new online series called “The Watch List.” The series features the comedy of Arab American humorists, and revolves around their experiences living in a post 9/11 America. In one of the episodes, comedian Ahmed Ahmed jokes about his adventures in airports. “Yes, my name really is Ahmed Ahmed,” he says, head hanging and pausing momentarily. “I can’t fly anywhere!”

He then goes on to say that if you Google his name, you will find that it matches the name of an Egyptian terrorist, landing him on the FBI’s list of Most Wanted Terrorists. Ahmed’s place on a government watch list means he is detained and searched at airports, which he cleverly portrays in his stand-up routine. But as both Ahmed’s comedy and the name of his series suggest, government watch lists have grown so notoriously out of control that they are the newest source of political satire.  It seems that because of the numerous mistakes in identities and other errors, they are in danger of becoming a joke.

These problems are not limited to people with Arabic names. Ahmed joins the distinguished ranks of Senator Ted Kennedy and Bolivia’s president Evo Morales, fellow victims of erroneous airport detainment. Countless similar stories of other watch list victims have appeared in the news, such as that of Marine Staff Sgt. Daniel Brown, who was detained at an airport on his way home from deployment in Iraq. Indeed, the Washington Post reported in March 2007 that the names included in the Terrorist Identities Datamart Environment, the source for all government watch lists controlled by the National Counter Terrorism Center, have quadrupled over the past four years, and a June 2007 report by ABC news indicated that the consolidated terrorist watch list now contains a staggering 509,000 names.  As of last October, more than 30,000 delayed and otherwise inconvenienced airline passengers had asked the Transportation Security Administration to have their names – erroneously placed on a watch list – removed from those lists, according to the Associated Press. 

The problems with watch lists have not been limited just to airline travelers. A report by the San Francisco Lawyers’ Committee for Civil Rights shows that the government has encouraged private businesses to screen consumers by using the public Office of Foreign Assets Control (OFAC) watch list. The OFAC list connects these ordinary consumers with suspected terrorists on such tenuous bases as a shared middle name. Tom and Nancy Kubbany were denied a mortgage because Tom’s middle name, Hassan, matched an alias of Saddam Hussein’s son—despite the fact that Tom was born in Michigan, has never been to Iraq, and is thirty years older than Saddam’s son.  With the same level of “proof,” Barack Obama, Muhammad Ali, and Paula Abdul could be considered terrorist suspects.

Although watch lists may play an important role in identifying threats to national security, they have grown to be inaccurate, unreliable and too widely used.  The harms caused by the inefficiencies and inaccuracies of these lists go beyond mere annoyances to travelers: the cost of wasted resources is too high, especially when balanced against the critically important task of keeping our nation safe. Furthermore, if these errors are not addressed, they have the potential to continue to violate our civil liberties and harm innocent civilians. 

The Constitution Project recently released a report on how to confront the problems posed by government watch lists. Because we recognize that there are situations in which watch lists must be employed to protect our safety, our report calls not for eliminating these lists, but for restrictions on their use. Certain situations, such as those in which a decision must be made quickly and inaction might have potentially dire consequences – such as at airports - merit the use of a government watch list. However, these lists should not be used as “blacklists” in any context relating to employment or the application for licenses or contracts. In these cases, there is enough time to pursue a thorough background check. Reliance on watch lists in these cases is unnecessary, and poses an undue risk of violating individuals’ civil liberties. 

The Constitution Project’s report also proposes reforms to improve the accuracy of watch lists and includes guidelines for a system that would allow individuals to challenge their erroneous inclusion on a list. Among other reforms, it is critical that the government provide clear, written standards for when names may be added to watch lists, including specific criteria to ensure that that those placed on a watch list deserve to be there. A Government Accountability Office report from last September stated that in a 26 month period, half of misidentified persons referred to the Terrorist Screening Center had names that were similar to those on a watch list. Individuals must have a meaningful procedure for challenging their inclusion on a list; the sheer volume of complaints demonstrates the need for an improved and standardized system of redress.

While the impact of watch lists on people such as Ahmed Ahmed may be funny to those of us who have not mistakenly ended up on one, his comedic riffs expose a serious danger: the infringement of our civil liberties. We can, and must, recognize that we can keep our nation safe while at the same time protecting the rights and freedoms that make America free. Those rights and freedoms should never be compromised.

In December 2003, local authorities detained German citizen Khaled El-Masri while he was traveling in Macedonia. Mr. El-Masri was then transferred to U.S. authorities, drugged, flown to Afghanistan and imprisoned at a CIA prison as a suspected terrorist; he was beaten, interrogated, and denied access to either a lawyer or a representative of the German government. After four months, the CIA abandoned Mr. El-Masri in Albania without explanation or apology. It was eventually discovered that Mr. El-Masri was the victim of a case of mistaken identity—the CIA had tortured an innocent man.

Mr. El-Masri sued then-Director of Central Intelligence George Tenet and the unnamed agents involved, seeking damages for his ordeal. Given his appalling treatment, it seemed unlikely that the CIA would escape liability for its actions. Unfortunately for Mr. El-Masri, and for the public at large, he may not have the chance to hold the CIA accountable. To date, federal courts have asked for no explanation from the CIA, instead allowing the agency to hide behind a claim of the “state secrets privilege.” Under this privilege, the Executive Branch claims that the disclosure of certain evidence in court may damage national security and therefore cannot be released in litigation. The court in Mr. El-Masri’s case dismissed his lawsuit without ever reviewing any evidence to assess the validity of the Executive’s claim.

The state secrets privilege is rooted in United States v. Reynolds, a 1953 Supreme Court decision arising from the deaths of three civilian contractors, who were killed when the Air Force plane they were aboard crashed. Their widows sued the military and sought to review the accident report. The military refused to release it -- even though it was the type of document that would have been readily available in a suit against a civilian airline -- claiming it contained information about sensitive equipment aboard the plane. The Supreme Court essentially accepted the Executive’s argument on faith, overruling both the trial court and the court of appeals and declining to order that the district court review the report to test the claim’s validity. History confirms that the Court seriously erred in deferring blindly to the Executive. The accident report was declassified in the 1990s; we now know that it contained no state secrets and that the Executive misled the courts to cover up its negligence relating to the crash.

There is no denying that the state secrets privilege can play a role in protecting national security.  Like other evidentiary privileges, however, it can only function properly when limited in its application and balanced against the interests of justice. In Mr. El-Masri’s case, and in other cases both before and after September 11 that involve military and intelligence programs, the Executive has instead used the privilege as a shield against embarrassment and scandal. In several cases, the Executive has completely evaded judicial oversight; all that the courts have required is the assurances of a government official involved in the case.

Broad application of the state secrets privilege reflects a failure to understand—or an unwillingness to accept—the capacity of the courts to review classified evidence. This is why the Constitution Project has recently released a statement calling on Congress to establish clear guidelines for the privilege, ensuring it will be used only where absolutely necessary to protect national security. The statement, authored by a broad bipartisan coalition of policy experts, former government officials, and legal scholars, provides a detailed critique of the doctrine and describes how a narrower application of the state secrets privilege can protect national security while furthering the pursuit of justice, safeguarding judicial autonomy, and ensuring governmental accountability.

For years, judges have regularly ruled on whether sensitive evidence should be subject to an evidentiary privilege. Judges may first screen such material in the privacy of their chambers, minimizing any risk of unwarranted exposure to either the public or opposing parties in a case. Passage of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) and the Classified Information Procedures Act of 1980 (“CIPA”) enhanced the abilities of federal courts to evaluate sensitive materials and reflects congressional confidence in their ability to do so. 

The Supreme Court now has an opportunity to correct the flawed decision in Reynolds. As of this writing, Khaled El-Masri is seeking review of his case in the Supreme Court. We hope the Court will accept review of the case, rectify the error it made in Reynolds, and allow Mr. El-Masri’s case to proceed. At the same time, Congress should take steps to prevent the state secrets privilege from remaining a license for Executive overreaching. Congress must clarify that judges, not the Executive Branch, have the final say about whether disputed evidence is subject to the state secrets privilege. This will restore and strengthen the basic rights and liberties provided by our constitutional system of government, provide fairness to parties to litigation, and enable public scrutiny of governmental conduct and thus preserve accountability for Executive actions. 

Justice may have been denied in Reynolds, and indefinitely delayed for Khaled El-Masri, but prompt Supreme Court or congressional action may yet prevent countless other injustices from being committed in the name of secrecy.

By most accounts, London is the city with the greatest number of public video surveillance cameras in the world. The Orwellian motto for the London system, in signs posted by law enforcement authorities, is that “you have nothing to fear if you have nothing to hide.” But is that really true? As more and more American cities and communities decide to follow London’s lead and install their own surveillance cameras, Americans need to ask themselves this question. 

Interestingly, law enforcement professionals – the people who operate these public cameras – understand the threats to privacy rights posed by these cameras better than most of us. Recently, one of us -- the Constitution Project’s senior counsel Sharon Bradford Franklin -- had the opportunity to speak on a panel at the first National Fusion Center Conference – an effort by the U.S. Department of Homeland Security and various offices of the U.S. Department of Justice to promote information sharing with state and local law enforcement officials. She served as a panelist for the Privacy and Civil Liberties break-out session and discussed the Constitution Project’s Guidelines for Public Video Surveillance with the audience of state and local law enforcement officials.

She describes her experience this way:  

I began my presentation by asking the law enforcement officers to raise their hands if they believed that video surveillance cameras can be an effective law enforcement tool. As I expected, most raised their hands. Next, I briefly described the power of modern technology that might permit a system of cameras to track an individual around town and create a digital dossier of his or her daily life. But, noting that this was a very “law abiding crowd,” I then asked how many of them wouldn’t mind if their entire daily lives were captured on film for government officials to review. Not one person raised a hand.

Since this crowd likely has no criminal activity to hide, I had expected a substantial number to raise their hands, and had planned to continue by noting some of the potential pitfalls involved. My next questions would have been to ask “Think about whether you have – or maybe someone you know really well has – ever entered a psychiatrist’s office, or a fertility clinic, or an Alcoholics Anonymous meeting, or maybe the meeting or some non-traditional political or religious group? Now you don’t need to raise your hands this time, but I want you to think again: how many are REALLY comfortable having your entire daily life captured on video footage for government officials to view?”

But I never got to these questions. I never had to point out to this law enforcement crowd that there are plenty of perfectly legal activities that most of us prefer to keep private – even though we may need to enter public spaces to engage in these activities. 

Although they had been taught that, under the law, people have “no legitimate expectation of privacy in public places,” the law enforcement officers attending the FusionCenter conference fully understood the dangers to privacy rights that video surveillance poses. They knew that the powerful technology of video surveillance cameras is subject to abuse, even by well-intentioned officers.

The Constitution Project’s Guidelines for Public Video Surveillance sets forth a series of practical recommendations to help protect our civil liberties and privacy rights in these situations. This report contains the bipartisan consensus recommendations of the Project’s Liberty and Security Committee – a group of experts from across the political spectrum. As our report notes, although existing studies raise serious questions about the effectiveness of surveillance systems in preventing crime, there is some anecdotal evidence that such footage may be helpful in investigating and prosecuting criminal acts.   Thus, if state and local officials decide to establish video surveillance systems, they can follow the Constitution Project’s guidelines to minimize the intrusion on individual rights and establish systems that will only capture the footage that law enforcement officials really need. 

Most importantly, we recommend that communities use publicly accountable procedures for establishing any public video surveillance system. When a community seeks to establish a permanent system of cameras, this process should include a full public comment period, and a cost-benefit analysis to ensure that the surveillance system is designed to fit the community’s law enforcement needs, its available staffing, and its budget. For specific emergency law enforcement investigations, a judicial approval process can provide this accountability instead. Our guidelines also recommend a series of rules to regulate the use of systems once they are up and running. For example, law enforcement should be required to obtain specific approval before using technologies that are more intrusive on individual privacy rights, such as automatic identification or tracking of a given person.

Our video surveillance report also includes model legislation to enable communities to easily enact the guidelines into law. With such rules in place, communities can ensure that any public surveillance cameras will only serve legitimate law enforcement purposes – so that law abiding residents really will have nothing to fear.

A high ranking official within the Department of Justice fires a federal prosecutor for political reasons, when that prosecutor is in the middle of a criminal investigation. The date? October 1973. 

The current controversy surrounding the dismissal of U.S. attorneys by DOJ officials acting on the instructions (implicit or explicit) of President Bush’s top advisors has a precedent in history. More than three decades ago, Acting Attorney General Robert Bork carried out President Richard Nixon’s order to fire Archibald Cox. Cox was the Special Prosecutor appointed by Attorney General Eliot Richardson to investigate the possible involvement of the White House in the burglary of the Democratic National Committee headquarters and efforts to cover up that involvement. Bork became Acting Attorney General because Richardson had resigned rather than carry out Nixon’s order, as had the Deputy Attorney General, William Ruckelshaus.

Because the DNC headquarters was housed in the Watergate Hotel, the scandal became known as “Watergate,” and it eventually expanded to include a wide array of abuses of presidential powers.

As we have repeatedly heard in recent days, U.S. Attorneys serve at the pleasure of the President. All presidents expect federal prosecutors to follow the administration’s law enforcement agenda and to carry out his or her priorities. But, as Nixon discovered, and President Bush is learning, the American public has little tolerance for the blatant politicization of justice that is exemplified by the firing of prosecutors for doing their jobs, or for refusing to do their jobs in a “partisan” manner.  Nor should they. Thanks, in part, to public outrage over the Saturday Night Massacre – as the events culminating in Cox’s firing came to be known - Nixon’s presidency did not survive the Watergate scandal. He was on the verge of being impeached by the House of Representatives when he resigned his office in disgrace.

The Bush presidency is not similarly threatened by the recent firing of eight U.S. attorneys who were not, as one e-mail described them, sufficiently “loyal Bushies.” The attorney generalship of Alberto Gonzales may well be. 

Is the removal of Gonzales from office warranted?  

On March 29, Gonzales’ former Chief of Staff, Kyle Sampson, testified before the Senate Judiciary Committee that Gonzales participated in a November meeting to plan the firings, and that he briefed Gonzales in some detail and on numerous occasions about the plans and the specifics regarding who was to be fired. He also said that Gonzales was the “decision maker,” along with then-White House Counsel Harriet Miers. Sampson’s testimony directly contradicts Gonzales’s March 13 statement that he was not “involved in any discussions about what was going on” regarding the dismissals. In our view, misleading Congress and the American public is a sufficient reason for removing the nation’s chief law enforcement officer from his or her post. But in the rush to censure and punish false statements (see Clinton and Libby), we should not overlook the conduct preceding the mendacity. 

Attorneys general will likely share the politics and general law enforcement agenda of the presidents who appoint them. But the public expects these law enforcement officers to represent us, and not the partisan goals of the White House. We expect them to exercise independent judgment and to make every effort to ensure that justice is blind.  

Eliot Richardson understood this. In his resignation letter he reminded Nixon that he had pledged publicly at his confirmation hearing “not to countermand or interfere with the Special Prosecutor’s decisions or actions.” To Nixon’s plea that he place national interest above his personal pledge by remaining on the job, he responded that maintaining his pledge was in the national interest.

At this point, the calls – by Democrats and Republicans alike -for Gonzales to resign are mounting, and the White House’s defense appears lukewarm. There are reports that Justice Department employees, here in Washington and around the country, are demoralized and concerned about the impact these events are having on their ability to do their work. 

There appears to be no way for Attorney General Gonzales to restore public confidence in his leadership. We hope he will at least restore our confidence in the Department of Justice by resigning.  If he remains in office, he should issue his own pledge: to make sure, going forward, that the partisanship that infects today’s political culture does not affect the administration of justice. It is one thing for incoming presidents to dismiss all or most of the sitting U.S. attorneys and to replace them with prosecutors who share their political philosophy and priorities. Selectively firing competent prosecutors for prosecuting too many Republicans or not enough Democrats is another matter.  Whatever else he may have done, the Attorney General is guilty of placing his loyalty to President Bush and the Republican Party above the integrity of federal law enforcement.