All Blog Posts from Political Hotsheet

By a single vote, the United States Supreme Court Tuesday threw its weight behind the embattled Federal Communications Commission on the topic of the regulation (read: the banning) of “fleeting” expletives on our airwaves. Justice Antonin Scalia, writing for a fractured majority, declared that the FCC was within its statutory and regulatory authority when it sought to chastise Fox for two long-ago incidents in which “F-bomb” was used on live television at a time when children were watching.

But the Court refused to address, much less resolve, whether the regulations (and their statutory basis) violate the broadcaster’s first amendment “free speech” rights. The lower federal appeals court had not addressed or resolved that constitutional issue so the Justices were not bound to do so, either, and it is a virtual mantra at the Court that the Justices will rarely say more than they have to in order to resolve a dispute. Here, the majority determined that they could dispatch Fox’s argument without ever reaching its constitutional merits.

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Clever guy that Arlen Specter. When the Ranking Member of the Senate Judiciary Committee publishes a long essay to liberals in the New York Review of Books he wants them to know he "appreciate[s] an imbalance in our 'checks and balances' that has become increasingly evident in recent years."

But when the cable cameras are on him, when he's talking to his base, he's glibly warning that an investigation into Bush-era torture policies would be a "witch hunt" that can easily be avoided if only investigators "walk in and ask where the file cabinets are."

You can understand why the Republican senator from Pennsylvania wants to be all things to all people. He's now facing another primary challenge from Pat Toomey, a staunchly conservative opponent, so he has to keep up his bona fides with the right.

But he also has a history of standing up to presidents of his own party when he believes they aggrandize their constitutional powers. The problem for Sen. Specter is that the current political debate over Bush-era torture policies leaves him tongue-tied and twisted, contorting himself over apparently contradictions in logic and policy.

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Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) reacted quickly and positively this morning to President Obama’s comments yesterday about the possibility of a bi-partisan commission that would investigate the Bush Administration’s torture policies.

Speaking to reporters on Capitol Hill, Sen. Leahy said: “I would prefer an overarching commission, non-partisan commission, to look at this and for the American people to know what happened, that would require support from both parties just to get it in there. The president who seemed lukewarm about it, yesterday in his comments seemed more agreeable to the idea and I will sit down and talk with him about it.”

Sen. Leahy won’t just need to convince the White House and Justice Department to go along with the idea of a Torture Commission. He’ll need Republicans to make the Commission truly bipartisan. And for that he might need an initial pledge from the executive branch not to prosecute former Bush officials who authorized and drafted the memos. Wouldn’t that cool the ardor of Congressional Republicans who worry about a “witch hunt”?

Late last night, long after the evening news shows were done, the Senate Armed Services Committee released a newly-declassified report on the scope of America’s "enhanced interrogation tactics."

It’s an ugly story, offered in great detail (it was completed in November 2008) but not inconsistent with what previous reports have detailed about why and how we came to torture.

Here's my question for the day: does the release of the results of this pointed investigation make it more or less likely that we’ll see torture prosecutions or a "torture commission"?

In other words, will opponents of those two options now point to the Armed Services Report and declare "we don’t need to look back again, we've already done it"?

Or will the report only push the Congress and the White House into pressing the torture question further? Discuss.

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(CBS)

Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.

I have stopped my head from spinning long enough to try to offer a few basic thoughts on today’s “torture trial” news.

If you haven’t heard already, President Barack Obama went remarkably out of his way Tuesday to keep alive the possibility of the potential prosecution of former Bush officials for formulating torture policies in the wake of 9/11. The President also implied his support for a bipartisan panel to look at the contentious issue.

This is news—very different in tone and tenor from what we heard from the Administration last week. So before the next head-turning development occurs on this topic here are ten things you ought to keep in mind as we go forward. Don’t like them? Don’t worry—they will probably be obsolete within the next few days.

1. Any prosecution of any former Bush officials for their role in formulating torture practices will be very difficult to win in court. Even some of the most ardent supporters of such a path concede as much. The law is set up to protect officials even when they come up with dubious justifications for dangerous policies. Why is this different?

2. It is entirely possible, indeed likely, that President Barack Obama’s suddenly tough talk on torture prosecutions is designed to push the Congress into accepting a primary role in the creation of a bipartisan “Torture Commission”. Certainly a commission would be less partisan than a series of criminal trials of former Bush Administration officials.

3. Vice President Dick Cheney is never, ever going to be prosecuted even though, technically, he may have secretly had final say on the scope of our torture policy. The former officials who ought to be calling their lawyers now (or who already have called their lawyers) are the men who actually rafted the Office of Legal Counsel memos. No more self-indulgent op-eds for you, John Yoo!

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Welcome to an odd week at the Supreme Court where the Justices get the rare opportunity to chime in on two cases that present facts that: 1) most Americans can understand, and; 2) most Americans are appalled by.

"Hard facts," lawyers say, make "bad law." This week we'll begin to learn what sort of law the Court is going to make with the "easy facts" before it.

First up at the High Court, on Tuesday, is the story of Savana Redding, then 13-years-old, who was sent to the nurse's office at her Safford, Arizona school, told to strip to her underwear, "move her bra to the side and pull her underwear out, exposing her breast and pelvic area."

Why? One of her classmates accused Redding of hiding prescription-strength Ibuprofen pills (which were never discovered). Redding's mom sued. The trial court sided with the school. The 9th U.S. Circuit Court of Appeals sided with Redding.

The question in the case is not whether students may be searched by school officials or the police. They may be. The Court has long held that public school students do not have nearly the same privacy rights as adults. Chances are the chattering classes would not be all agog over this story if the student was suspected of having a gun or a bomb and the search were not so intimate.

But the main question Tuesday is whether the intensity of the search was justified given the object of it—whether a suspicion of a few ibuprofen tablets warranted making a 13-year-old girl expose herself.

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The bad news for the so-far unnamed teenager qua pirate-hijacker captured Sunday during a now-famous firefight is that he’ll almost certainly be convicted in an American court if and when he is brought to justice here in the States. The good news for the young man is that his time in confinement—both before and after his likely conviction—will be far more humane than he would receive were he to face charges in Kenya or some other African nation.

It doesn’t matter much that the suspect evidently is under 18 years old. Federal law permits the indictment of boys and girls for non-capital crimes. And since no victims died during the hijacking/piracy episode the death penalty would not be an option anyway following a conviction. Moreover, the circumstances surrounding any post-capture comments he may or may not have made shouldn’t be a big deal, either. The feds won’t need a confession here to be able to string together a very strong case. Captain Richard Phillips’ testimony, alone, with the help of a little Navy videotape, would probably be enough to generate a conviction.

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As dramatic as it sounds, it is not a terrible surprise that U.S. District Judge Emmet Sullivan announced in open court Tuesday that he is authorizing a criminal contempt investigation into the odious misconduct of Ted Stevens’ prosecutors, actions that led directly to disgrace and the dismissal of his conviction.

Judges don't suffer deceit gladly and federal judges in particularly don’t like it when they, or defense attorneys, are lied to by government attorneys.

The judge’s inquiry, replete with the requisite special prosecutor, will run concurrently with any internal Justice Department investigation into what government lawyers knew, when they knew it, and why they failed so miserably to meet their ethical and constitutional duties before and during the former senator’s corruption trial last fall. Either of the investigations, or both, could ultimately result in criminal charges (obstruction of justice, for example), and even prison time for the shady prosecutors who played so fast and loose with evidence.

Judge Sullivan's contempt investigation puts enormous legal and political pressure on the Justice Department to undertake its own aggressive look into how federal lawyers, presumably the cream of the crop, could have failed to disclose important evidence to Stevens' attorneys or even fabricated false evidence to try to enhance their case against the legendary politician. Indeed, Judge Sullivan indicated that he was taking aggressive action because he feared that Attorney General Eric Holder and the DOJ’s Office of Professional Responsibility weren’t moving as quickly with his own review of the matter.

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Safe? Yes. Innocent? Hardly.

Hold on, Governor Sarah Palin. Just because federal prosecutors wisely decided to drop their successful corruption case against Ted Stevens doesn’t mean that the former Alaska senator has been vindicated, much less exonerated. So not only does a new senate race up there have no political chance it has no legal or logical foundation, either.

Fraud and deception in the government’s case, however inexcusable, doesn’t magically erase from the world of our memory (or the universe of proof) those incriminating audio-taped conversations between Stevens his buddy, Bill Allen, that helped persuade federal jurors in Washington last fall to convict the legendary politician of failing to accurate file financial statements. The Justice Department may have tainted itself before and during the Stevens trial. But it did not taint all facets of the government’s case against the man.

Stevens is dreaming a little dream if he truly believes, as he said last week, that he “always knew that there would be a day when the cloud that surrounded me would be removed. That day has finally come.”

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Former Senator Ted Stevens (R-Alaska) benefitted this morning from the exquisite timing of perennial politics. His corruption case didn’t fall between the cracks of the Bush and Obama Administrations so much as it bridged the legal and partisan gulf between what the old regime did and what the new regime wants to do when it comes to professionalism at the Federal Bureau of Investigation and the Justice Department.

On Wednesday, Attorney General Eric Holder himself declared that he had reviewed the record of the Stevens’ case and was not willing or able to continue to defend it in court against allegations that government lawyers and investigators improperly withheld evidence from the Stevens’ defense team—and even apparently fabricated evidence that was shown to jurors! As a result, the old pol’s conviction melts away, his looming date with a federal prison cell gets scratched from the schedule, and he will forever be able to argue to his fans and family and friends that he was railroaded.

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