The media continues to tout the Obama Administration's new drug control policy, to be released today, as a big progressive change that favors treatment over enforcement.

As I wrote last week, that's only half the story. The new policy (available here in its last draft form) also strongly opposes the legalization of marijuana, contains yet more money for the war on drugs and law and border enforcement, and urges states to adopt a zero tolerance policy for driving with any amount of an illegal controlled substance in one's system. (Marijuana stays in one's system for about 30 days. You can see where this is headed.) The policy also states its intention to go after indoor marijuana grows and ramp up forfeitures of cash by treating large amounts as if it were drugs. It also urges health care providers to ask patients more intrusive questions about drug use.

Do we need more money for treatment and prevention? Of course. But why does it always have to be accompanied by ratcheting up the war on drugs with more of the same ill-advised enforcement policies?

U.S. District Court Judge Lewis Kaplan ruled yesterday that a defendant accused of the 1998 U.S. Embassy bombings in Africa, alleged al Qaeda member Ahmed Ghailani, is not entitled to have his criminal case dismissed over allegations he was tortured during CIA questioning in a secret black hole prison. (He was later transferred to Guantanamo and ordered tried in federal court.)

Although details of his treatment while in C.I.A. custody are classified, he has said in court papers that he was subjected to cruel “enhanced interrogation techniques.” His lawyers say that his treatment was unquestionably “torture,” and argued that the techniques were so “shocking to our traditional sense of justice” that charges should be dismissed on grounds of “outrageous governmental conduct.” “Indeed, while it is rare to find a case that is ‘so outrageous’ to warrant the ultimate sanction of dismissal,” his lawyers wrote, “if this is not such a case, then what is?”

The Government has stated it won't use Ghailani's statements at trial so the Judge ruled they were irrelevant. [More...]

Law prof Jonathan Turley fears Elena Kagan will move the Supreme Court to the right, especially on civil liberties and support for Bush-era policies:

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

He also makes a point I made last night: Obama has never been the liberal that liberals thought he was. [More...]

At a hearing in Los Angeles yesterday, Superior Court Judge Peter Espinoza denied Roman Polanski's motion to unseal the testimony of the original case prosecutor so it could be reviewed by the Swiss in deciding whether prosecutors made false allegations in the extradition request.

Polanski's attorneys argue that the issue is important, in part, because the United States' extradition treaty with Switzerland allows the extradition of a defendant only if the remaining time still to be served is more than six months. They note that an affidavit by L.A. County Deputy Dist. Atty. David Walgren that was given to Swiss authorities does not say Polanski's diagnostic testing was meant to serve as his full prison term.

"This affidavit does not provide the facts, and Mr. Gunson's testimony proves that," attorney Chad S. Hummel said in court Monday.

LA prosecutors argued the extradition request was accurate, citing the fact that it was reviewed by the Department of Justice. When did federal prosecutors become judges? Their view is one that can be taken into account, but it should be the Judge's call.

Prosecutors say Polanski faces up to two years when sentenced. They are arguing about the difference between 48 days (the maximum number of days between the 42 Polanski served and the 90 the judge said he intended to impose) and two years, in a case over 30 years old where the defendant is 76 years old and has been exiled from the U.S. for decades and forced to live under house arrest in Switzerland for months. Give it up already. What are these proceedings, which the victim opposes, costing cash-strapped California? Enough is enough. Free Roman.

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, [Kagan]’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. - Jeff Toobin, cited by Jack Balkin to evidence that Elena Kagan is not a "stealth nominee."

Coming from a law professor, expressing disdain because people care what a SCOTUS nominee thinks is strange. Coming from the very smart Jack Balkin, it seems incomprehensible:

Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are pouring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts. I find all of this dreary and tiresome.

(Emphasis supplied.) WTF? And this is BS:

Los Suns swept the Spurs. Beat LA!

Open Thread.

Link:

There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.

I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice. I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.

(Emphasis supplied.) I would add a question on Dickerson v. US ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution. [. . .] we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.")

Speaking for me only

Jeff Rosen writes:

In an academic article she will no doubt most regret, Kagan laid out what conservatives are already calling the “Kagan standard,” insisting that senators should question Supreme Court nominees closely. The Kagan standard is well worth applying to Elena Kagan [. . .]

I completely agree with Jeff Rosen. Let's apply the "Kagan Standard" to Elena Kagan.

Speaking for me only

Elena Kagan's expressed views are sparse. She has a lot of answers to provide. But since we pretty much knew she would be the nominee a while ago, we wrote about the few issues where her views and/or conduct were known. First, I wrote a lengthy post extolling Kagan's law review article on executive power as an exercise in scholarly excellence and progressivism. Second, I wrote a critique of her hiring actions as Dean of Harvard Law School. Third, I discussed Kagan's views on preventive detention (they are similar to my own, which are not progressive.)

Here is Jeralyn's take on the announcement of Kagan as SCOTUS nominee.

The story of Elena Kagan's legal views remains to be told and she needs to tell it during her confirmation hearings.

Speaking for me only

Previously I criticized Joe Sestak for his eagerness to rubberstamp Elena Kagan's nomination to the SCOTUS. Sestak criticized Arlen Specter's no vote on Kagan for Solicitor General. Booman provides Specter's very compelling defense of his No vote:

I don't know very much more about [Kagan] now than I did when we started the process. From the many questions that I asked her on cases, I have picked out a few to illustrate the problem I am having with figuring out where she stands and the problem I am having with her confirmation. [. . . W]e do not know very much about her views [. . .] I had calls from people in high positions--I do not want to identify them--saying: Well, don't ask those kinds of questions. Somebody in the executive branch. Well, I am not prepared to relinquish the institutional prerogatives of the Senate to ask questions. The executive branch nominees want confirmation. Well, Senators want information to base their opinions on.

[. . .] In essence, it is difficult to cast a negative vote on someone with the qualifications and background of Dean Kagan, but we have a major problem of institutional standing to find out from a nominee what the nominee thinks on important questions. [. . .] I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no.

(Emphasis supplied.) In my view, this is precisely the attitude that the Senate should take towards all judicial nominees. On this issue, Joe Sestak could not be more wrong and Arlen Specter could not be more correct.

Speaking for me only

Does the Congress have the right to limit Fifth Amendment rights by passage of a statute? This seems like a simple question to which the answer is an emphatic No. But the Obama Administration's position on this puts this view in doubt:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

Does Elena Kagan believe that Congress can restrict fundamental Constitutional rights by mere passage of a statute? Let's hope not. I'll have more on this silly election year proposal from the Obama Administration in a later post.

Speaking for me only

Joe Sestak sent this press release:

Democratic U.S. Senate candidate Congressman Joe Sestak released the following statement today on President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court:

"I applaud President Obama's selection of Elena Kagan to serve as our next Supreme Court Justice. The President's background as a Constitutional law professor served him well in selecting Justice Sotomayor, and I believe it has again in this case. "Ms. Kagan's qualifications as both a respected legal mind who rose to be Dean of Harvard Law School and a key domestic policy adviser for President Bill Clinton, who helped formulate and implement policies in areas including education, crime and public health, will allow her to bring a breadth of experience to the bench.

[. . .] "Senator Specter has rightfully said that confirming nominees to the Supreme Court is one of the most important duties of a Senator. The people of Pennsylvania and this country deserve someone they can count on to be objective and act in the best interest of the nation -- not to exploit such an important process for their own political gain."

Joe Sestak's impulse to rubberstamp the President's choice puts his ability to carry out this function in serious doubt to me. I deplore his desrie to be the first to rubberstamp President Obama's choice of Elena Kagan. Bad show Rep. Sestak.

Speaking for me only