If you’re interested in the subject you should read Glenn Greenwald’s roundups on her record or lack thereof here, here and here. These are the most important facts we have:

1. Kagan has no experience as a judge and a minimal record on which to evaluate her beliefs. When conservatives pushed Alito and Roberts they knew exactly the kind of hard-right judges they were getting. With a big Democratic majority in Congress, liberals should demand no less.
2. Why hasn’t Kagan spoken out about legal issues in the last decade? Hasn’t there been a lot of controversial stuff going on with the war on terror, domestic spying, corporate overreach, etc.?
3. She agrees with some pernicious views pertaining to the War on Terror. Specifically, she agrees that the entire world should be considered a battlefield and that detained terror suspects can be classified as “enemy combatants.”
4. Kagan supported a position surprisingly similar to that of Bush/Cheney’s unitary executive where the President has nearly dictatorial power
5. All the wrong people have praised her: Bill Kristol, Ed Whelan, and Joe Lieberman.

Given the importance of the Supreme Court, Democrats and liberals really should be taking advantage of this opportunity to provide a left-wing balance to Bush’s picks of Alito and Roberts, not supply them with a possible ally.

“What we’re seeing right now is the dismantling of precedent that we created at Nuremberg, when we said that you can’t facilitate war crimes as lawyers and say that it was simply bad judgment. [...] If you can’t be held accountable for facilitating war crimes, something that they don’t really discuss in this report, then when can you be held accountable? I mean, this is it. I mean, this is the worst-case scenario. And so what the Justice Department has done is carved out for itself a standard that it can never fail, that even supporting torture is just bad judgment.” – Jonathan Turley

Read more excellent analysis by Jack Balkin:

Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

More by Adam Serwer:

It’s clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. [...] I confess to being bothered that we haven’t seen a similarly backlash against the architects of torture here–part of the reason we haven’t, is because even though innocents were tortured, we still see them as fundamentally alien. Few Americans directly suffered as a result of what Yoo and Bybee did–although I think we have yet to understand that damage that’s been done to our society as a whole.

And finally a parting shot from Yglesias:

The crux of the matter is that serious violations of domestic and international law were committed thanks to orders given at the highest level. But it would be politically unthinkable to hold the front-line perpetrators of the torture accountable while ignoring the fact that their conduct was specifically authorized by the relevant officials. And it would also be politically unthinkable to put Bush, Cheney, Rumsfeld, etc. on trial for their lawbreaking. So the idea of John Yoo as the villain began to take shape. And in the end it looks like even he’ll get away.

It has led to a partisan supercharging of election contests as the Democrats and Republicans embrace their own special interest groups. It also undermines the reputation of the courts. Justice O’Connor went on to talk about Caperton v. Massey Coal, the recent 5-4 Supreme Court ruling that a judge had to step aside when presented with a case involving a major campaign donor, in terms that made clear that she embraced that ruling—and not the position of four G.O.P.-appointed justices in the minority. The Caperton decision provides evidence of the deep corruption that campaign cash presents. The reach of that corruption has spread even into the Justice Department, which during the Bush years used the artifice of “policing” campaign contributions to judicial races to attempt to game the system further in favor of the G.O.P.—as amply demonstrated by the bizarre prosecution of Paul Minor and a group of judges in Mississippi, prosecutions carefully keyed to judicial elections in that state.

That was from September but here is The Atlantic with a roundup of judicial and major legal actions taken in this decade.

As evidenced by the earlier article and this one, even the halls of justice are not immune to political finagling and special interests. The latter post is quite explicit on all the extra-judicial powers that the Bush administration tried to push under the guise of protecting American ’security and freedom’. There has been no culpability to the egregious violations of privacy or human rights during that administration. I do not quite understand how Yoo, Addington and others have avoided being put behind bars themselves.

It begins at the low level, the county and state levels, with the political election by parties pushing their own interests of judges that suit their tastes. It works up until it infects all the legal processes where somehow, legally, we allow a lawyer to circumvent international laws on war and torture without any sort of legal retribution after the fact.

Our credibility as a law-abiding nation, both from within and without, will continue to disappear until we take efforts to buoy both.

There is the cost argument against life imprisonment. It should certainly be cheaper to kill someone than feed and house them in prison for the rest of their lives. But boy is that assumption wrong!

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life.

(h/t Balloon Juice)

With that said, there are good reasons for continuing to pursue Polanski. And now that he is captured, there is absolutely no reason to let him go without a full accounting of his crimes.

So, what the f*$% are these guys thinking?

Woody Allen, David Lynch and Martin Scorsese today added their names to a petition demanding the immediate release of Roman Polanski from detention in Zurich. … The petition has now been signed by more than 70 film industry luminaries, including Polanski’s fellow directors Michael Mann, Wim Wenders, Pedro Almodóvar, Darren Aronofsky, Terry Gilliam, Julian Schnabel, the Dardenne brothers, Alejandro González Iñárritu, Wong Kar-Wai, Walter Salles and Jonathan Demme. Actors Tilda Swinton, Monica Bellucci and Asia Argento, as well as producer Harvey Weinstein, have also put their names on the petition.

That seems more than a little hypocritical when Obama has actively shielded the past administration from international penalties against torture and launching aggressive wars.

The same goes for our own record on non-proliferation. We continue to trade with and give money to violators of non-proliferation like Israel, India and Pakistan. Our own arsenal is many times larger than it ever needs to be to incinerate the entire world.

So Mr. Obama, international law is an empty promise, your government proves it every day.

Long version: I’ve written a bit about the destruction of the 4th Amendment that is the NSA wiretapping scandal. I’ve wanted to write about this particular story since Friday night. It’s just so maddening and it’s not exactly a simple situation to explain, but here goes. In response to the Nixon administration’s abuse of wiretaps (he was spying on political opponents), Congress created the secret FISA court which was tasked with approving wiretaps. Since it’s inception in 1978 it has denied less than 10 warrants while approving more than 18,000.

While not a robust check on executive power, it was a check. Shortly after 9/11 the President created an NSA program that was authorized to spy on Americans and foreigners to search for evidence of terrorist activity. This program did not go to the FISA court for approval for the eavesdropping despite the court’s clear jurisdiction. So, because the government is conducting this spying in secret, we have no idea who they are spying on. This is precisely the situation that the FISA court was designed to prevent.

After this program’s existence was uncovered by the NY Times, Bush admitted its existence and very clearly stated that he would continue the program in violation of existing law (definitely grounds for impeachment). The Bush administration also made it quite clear that it sought no changes to the FISA court until, of course, the 2006 election season rolled around. Then it became a top priority, but Congress resisted.

Fast-forward to last week. The President and Republicans in Congress are suddenly is predicting doomsday is at hand and that the FISA law must be amended. The amendment is quickly written, hardly debated, and passed this weekend by the Democractic Congress.

Of course the law is terrible. It totally guts the power of the FISA court. To be wiretapped you no longer have to suspected of being a terrorist or foreign spy, you only have to be suspected of being foreign or talking to someone who is suspected of being foreign. And guess who makes that distinction. Yes, Attorney General Alberto Gonzales. Just the man who we should be giving more and more power to. The FISA court’s role has been reduced to that of a rubber stamp. They don’t approve or disapprove of wiretaps on an individual basis, they can only approve or disapprove of the process used to determine who is being wiretapped. Genius!

Check this link to see which Democrats voted for the gutting of the 4th Amendment and the FISA court. Vote them out.

From a 2005 debate with professor and international human rights scholar Doug Cassel:

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.

Keep Professor Yoo in mind when you think about Abu Ghraib, NSA wiretaps, rendition and Gitmo. He told our President that his power as Commander-in-Chief had no limits in the prosecution of war. It should then be no surprise that the Bush’s administration has not obeyed the limits of our established laws and treaties.

Abu Ghraib, NSA wiretaps, rendition and Gitmo are not excesses or aberrations in pursuit of our security, they are pieces of a larger policy that make Bush and any other president an autocrat during war. And how lucky we are to be in the middle of a “war on terror” that, by definition, will never end.

Since our illustrious Congress seems content with only annoying the White House and not truly reasserting the power of the legislative branch, we can only hope that our next president will not follow the precedent established by Bush.

And that’s what we’re dealing with, at least until January 20th, 2009.

1. January 17, Reid Amendment to Legislative Transparency and Accountability Act of 2007: a bill to provide greater transparency in the legislative process.
2. January 24, Fair Minimum Wage Act of 2007: a bill to amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage.
3. February 5, A bill to express the sense of Congress on Iraq: disapproving of the troop escalation in Iraq.
4. February 17, A bill to express the sense of Congress on Iraq: disapproving of the troop escalation in Iraq (again).
5. April 17, Intelligence Authorization Act for Fiscal Year 2007: an original bill to authorize appropriations for fiscal year 2007 for the intelligence and intelligence-related activities of the United States Government, the Intelligence Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.
6. April 18, Medicare Prescription Drug Price Negotiation Act of 2007: a bill to amend part D of title XVIII of the Social Security Act to provide for fair prescription drug prices for Medicare beneficiaries.
7. June 11, No confidence vote on Alberto Gonzales: a joint resolution expressing the sense of the Senate that Attorney General Alberto Gonzales no longer holds the confidence of the Senate and of the American people.
8. June 21, Baucus Amendment to CLEAN Energy Act of 2007: To amend the Internal Revenue Code of 1986 to provide for energy advancement and investment, and for other purposes.
9. June 26, Employee Free Choice Act of 2007: A bill to amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.
10. July 11, Webb Amendment to the national defense authorization act for fiscal year 2008: to specify minimum periods between deployment of units and members of the Armed Forces for Operation Iraqi Freedom and Operation Enduring Freedom.

But there is good news. Senator Harry Reid is says he is going to finally force the Republicans to actually filibuster a bill that would require a reduction in forces in Iraq. Let’s see if the Democrats have the spine to go through with it.

Speaking of spine; some Democratic lawmakers are still not ready to restore Habeas Corpus. You know… the thing that keeps us from being locked in jail just because the government says so. Bob Geiger has the list of those yet to find their spines.

From WaPo:

The word came in May 2006: Ali Mohammed Nasser Mohammed, a slight, 24-year-old Yemeni with curly black hair and a wispy beard, would be freed from Guantanamo after more than four years. He got a checkup. His photo was taken, as were his fingerprints. He was measured for clothes and shoes, then offered a meeting with the Red Cross.

As the Pentagon tersely put it later in an e-mail to his attorneys: “Your client has been approved to leave Guantanamo.”

“He never went home,” said Martha Rayner, one of the lawyers.

In the legal netherworld that the U.S. military detention center at Guantanamo Bay, Cuba, has represented since it was opened in 2002, Mohammed, once a cook for the Taliban in Afghanistan, remains stuck in a limbo of mistaken identities, bureaucratic inertia and official neglect. In the eyes of his lawyers, the young Yemeni’s case is an indictment of a system, still cloaked in the strictest secrecy and largely beyond accountability, in which a man who faces no charge and no sentence remains deprived of the freedom he was granted more than a year ago.

And there are more:

In addition to Mohammed, lawyers say, at least six other Yemenis, and perhaps many more, were cleared for release as long ago as February 2006 but remain imprisoned there.

Colin Powell is right. Close Guantanamo now and put these people into the U.S. justice system.