Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

Image by: Matt Mahurin

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, between the sadist and the masochist. The masochist says ‘Hit me’ and the sadist says ‘No.’ So I am kind of hoping they don’t get it.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”

While the national unemployment rate of 10.2 percent is a sobering reminder of the depth of this recession and the protracted timeline a recovery will take, the challenges posed by long-term unemployment are far greater.

“We are breaking every record post-Great Depression on long-term unemployment,” said Heidi Shierholz, an economist with the Economic Policy Institute. Right now, around 35 percent of those without jobs have been unemployed for more than six months, a figure that adds up to 3.6 percent of our country’s labor pool.

Image by: Matt Mahurin

While economists are divided about the best way to combat this growing problem, most agree on how it happened. The current recession exacerbated an ongoing economic shift from manufacturing to a service base. Troubles faced by Detroit’s Big Three automakers fanned the flames, rendering the skills of many workers obsolete. Even as local economies withered on the vine, workers were rendered immobile, locked into their homes by the real estate crash.

Long-term unemployment is dangerous because it can have a snowball effect, says Kevin Lowden, managing economist at the Milken Institute. The longer someone is out of work, the more likely he or she is to default on his or her mortgage, even low-risk borrowers at the time when the loan was originated.

“You also see significant issues in terms of the effect on consumer demand due to the dramatic increase in savings rate,” he said. While this increase in savings is good for the economy long-term, right now that frugality comes at the expense of consumer spending that could lead to employers hiring more workers.

This epidemic of long-term unemployment also puts an added burden on government coffers. “This is direct drain on budgets in two ways,” said Dean Baker, co-director of the Center for Economic and Policy Research. Government doesn’t collect income tax on laid-off employees, and when these workers go onto unemployment or disability rolls, this creates an additional drain on the system.

For instance, the increase in workers applying for disability has shot up. Currently, some 7 million adults are on disability, an influx so overwhelming that the trustees of the Social Security program predict that the disability fund will be emptied by 2017 if nothing changes.

This mass migration to disability status is primarily a function of our employer-based health care system, according to Lawrence Katz, a professor at Harvard University. “If you have a pre-existing condition, even if you get another job there will be problems with your coverage,” he said. “The one place you can go is disability, where you get onto Medicare. And once they go on, they basically never come off.” Health plans currently under debate in Congress would subsidize low-income citizens and families, which would include the unemployed, as well as ban insurers from eliminating pre-existing conditions, which make going off disability feasible. Currently, those jobless for a long period of time have nothing to fall back on after their COBRA benefit expires.

Even if those who have been unemployed long-term make it back into the workforce, their future earning power suffers. There’s some evidence that post-layoff retraining can mitigate this, but only under certain circumstances. A study out of the University of Chicago’s Harris School of Public Policy Studies found that attending one year of community college gave displaced workers a 5 percent wage boost. Unfortunately, the vast majority of workers enrolled in such programs don’t stick around for even a semester, let alone a whole year.

However, for workers that stick it out and specialize in vocational training, science or mathematics, the returns can be even greater. The study’s authors found a 10 to 15 percent jump in wages for this subset of workers, as well as higher returns for those who already had some degree of college education prior to their participation in the program.

To this end, much of the work that is being done to combat long-term unemployment focuses on retraining workers so that their skills are more in alignment with today’s service-based economy. “The economy has changed fundamentally and our workforce system has not,” said Andy Levin, Michigan’s chief workforce officer, who runs that state’s No Worker Left Behind program. “Most people who lose their jobs can’t replace their standard of living without getting significant training because of the rapid and ongoing march of technology and globalization,” Levin said.

No Worker Left Behind began operating in August 2007 and is funded primarily by the Workforce Investment Act, which was created in the 90s and received $1.25 billion in stimulus funding to help dislocated workers. Since then, No Worker Left Behind has trained 102,000 at-risk or jobless Michigan residents for jobs in growing industries like health care, technology and transportation.

Levin has put into place bureaucratic efficiencies, such as standardizing which types of jobs are eligible for training subsidies throughout the state and streamlining the process that lets jobless workers continue to receive unemployment benefits while pursuing additional education. When the program conducted a survey this April, they found that nearly half of the workers who had completed training had landed a job, 86 percent in a field that related to their training.

Other economists say that programs such as No Worker Left Behind, while helpful, don’t do enough to address the root of the problem: the overwhelming lack of jobs. Although the pace at which companies are laying off workers has slowed, companies aren’t rehiring, which means there are still too few jobs to go around. Traditionally, small businesses are the first to hire when the economy picks up steam after a recession; however, small-business financing has dried up due to the credit crunch, preventing entrepreneurs from expanding and adding employees.

“The crisis is just so big at this point with 10.2 percent unemployment that we’re thinking about new direct job creation proposals because the scale of the problem is so large,” said Allegra Baider, senior legislative associate at the Center for Community Change. That group, along with a host of other advocacy and labor organizations, recently released a joint statement calling for new investment in job creation in fields such as infrastructure and education.

“A top priority ahead of job training is we’ve got to fix the labor market and start generating jobs,” said the Economic Policy Institute’s Heidi Shierholz. The Obama administration plans to hold a jobs summit next month examining incentives like tax credits to encourage businesses to hire new workers.

John Challenger of Challenger, Gray & Christmas acknowledged that even if such programs succeed, many Americans will have to make adjustments. “One of the things that’s happening is a steady career at one large company or in a company town is no longer available, and people at all levels can no longer think of their careers as always progressing upwards in income.” Even as they learn new skills, employees also have to be taught how to be flexible so they can adapt to the twists and turns of the 21^st-century economy.

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

Image by: Matt Mahurin

Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”  It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

Federal Reserve Chairman Ben Bernanke (WDCpix)

Federal Reserve chairman Ben Bernanke announced last month that the recession was “likely over” and that the economy was in the early stages of a recovery. The problem is, many Americans don’t look around and see a recovery due to the still-abysmal unemployment rate. What’s scarier is that those numbers are probably going to get worse before they get better. The Congressional Budget Office predicts unemployment peaking at 10.2 percent next year and remaining at a very high 9.1 percent in 2011.

Illustration by: Matt Mahurin

“What people care about is numbers that affect their lives — employment, pay, housing. The story in almost all those cases looks bad,” said Dean Baker, director of the Center for Economic and Policy Research. “In one sense the recession will be over, but for all practical purposes, it still will be a recession for most people.”

In other words, we’re looking at a jobless recovery. “What it means is that the economy is recovering for Wall Street and business profits but it’s not distributing that prosperity effectively, and that’s not the recovery we need,” said Andrew Stettner, deputy director of the National Employment Law Project. “It’s not a true recovery until it lifts the fortunes of average Americans,” he added. Waiting for that could take a while: the Congressional Budget Office estimates it could take another five years to get back to America’s pre-crash unemployment rate.

Unlike recessions from roughly the end of World War II until the 1980s, a bounce-back in U.S. jobs isn’t going to come from the nation’s giant manufacturing sector cranking itself back up. While America still does produce goods both for export as well as for consumption at home, the 20th-century manufacturing-based economy has shifted to a service-oriented one, and roughly 70 percent of our economy these days is driven by consumer spending. As a result, recent recoveries have tended to be jobless ones in which the employment rolls take much longer to catch up with the rise in GDP that signals a recovery. After the 2001 recession, it took 17 quarters — more than four years — for the labor market to recover.

The severity of this recession as well as the enormous number of jobs lost is already creating a strain on the nascent recovery, and experts say it presents a number of challenges for average Americans as well as policy-makers. One of the most glaring is the issue of health care. The importance of the ongoing health care debate — and the need for reform — is highlighted by the plight of the unemployed when it comes to health insurance.

Currently, laid-off employees are eligible to remain in their employer’s group pool through the COBRA program for up to 18 months. Historically, many people who lose their jobs turn down the COBRA coverage because it requires individuals to shoulder the entire cost of the premium by themselves. In an acknowledgement that this is no ordinary recession, the federal $787 billion stimulus package includes a provision providing unemployed workers with a 65 percent subsidy of their COBRA premiums for nine months.

This is unprecedented, and yet many economists say it’s not nearly enough. “A lot of the people who start being unemployed aren’t reemployed after nine months,” Burtless said. The number of Americans on the jobless rolls for months or even years at a time is already swelling and expected to grow, which means it’s increasingly likely that the unemployed will run through their COBRA benefits by the time they land a new job. Even if a worker is lucky enough to land a job that includes health insurance (which is no guarantee these days, either), restrictions on pre-existing conditions kick in, leaving an untold number of Americans without a healthcare safety net.

Health insurance isn’t the only issue, though. “It’s a desperate situation because it’s going to be long term,” warned CEPR’s Baker. “Today you have people getting benefits, but people might be out of work for two or three years, and we’re not set up for having high rates of unemployment.” Baker points out that other developed nations are better equipped for a situation like this because of programs like long-term unemployment insurance, housing assistance and health care.

Prolonged unemployment is a double-whammy for those stuck without jobs for extended periods; not only are they out of work, but when the economy rebounds, they’re more likely to be passed over by the companies doing the rehiring in favor of people who have exited the workforce more recently. According to Lawrence Katz, a professor of economics at Harvard University, the unintended consequence of this escalation will be to push more workers into disability and early Medicare programs. “That becomes the only option and the difficulty with that is once people go on disability programs they basically never leave, which becomes very expensive,” he warned.

Benefits like unemployment payments are also facing a similar strain that’s likely to get worse before it gets better. Right now, laid-off workers in the states most severely impacted by the recession can draw up to 79 weeks of unemployment benefits. As with the COBRA subsidy, this is already an extension above and beyond the norm, but it’s not clear how much more of an appetite the federal government has to subsidize long-term joblessness.

There are a couple of encouraging signs that the government does understand the severity of the problem and is taking steps to address it. Support for a payroll tax credit, one oft-cited measure for increasing employment, is gaining support among both parties in Congress. One suggested version would give companies a credit of double the payroll tax for every employee hired or converted from part- to full-time. “We did a new jobs tax credit in the ‘70s that had some impact,” said Harvard’s Katz, adding that a broader wage subsidy would have a similar impact on the private sector but also offer employment support to nonprofits, as well.

The government could take a more direct role in boosting employment, Brookings’ Gary Burtless suggests. “I expect that if job creation is very anemic on private payrolls and continue to have a Democratic administration, there’s going to be a lot of initiative to somehow increase the share of the government’s stimulus efforts on job creation.”

It’s also possible that job-creation programs in stimulus bill may yet play a role in shoring up payrolls, although even pro-stimulus economists think that role will be minor. “It’s probably to date created between 700,000 to a little over a million jobs,” said CEPR’s Dean Baker. “It will make more of a difference, but it’s not big enough.”

There are still a couple of factors that could turn the tide in workers’ favor. Andrew Stettner points out that the stimulus-led investment in clean energy and “green” technology has the potential to put the U.S. back in the manufacturing game. “Right now, we’re borrowing and consuming. We need to move our economy more broadly to producing and inventing by investing in it to make it more competitive,” he said.

On a somewhat grimmer note, if America’s recovery lags behind that of our major trade partners or if the dollar is weak for a prolonged period, a surge in demand for exports could be a silver lining for the employment rate. Similarly, inventories in this country have been pared down so far that a big uptick in demand could lead to hiring, but since so much of what we consume comes from overseas, any employment boost there would be shared with other countries.

The worst-case scenario, says Brookings’ Gary Burtless, is that we experience a recession on par with the very steep one in 1981-82, but without the jobs recovery that followed. If this happens, Andrew Stettner of NELP predicts a societal fragmentation of nearly unprecedented magnitude. “I think you’ll start seeing a divided consciousness between the haves and have-nots by next year. Those who did lose their jobs and their savings will be increasingly isolated.”

Attorney General Eric Holder (WDCpix)

After months of leaks and speculation about its content, the Department of Justice yesterday produced a declassified version of the 2004 CIA inspector general report that provides details of the CIA’s investigations of certain detainees in the Bush administration’s “war on terror.” At almost the same time, Attorney General Eric Holder announced that he would conduct a “preliminary review” into those interrogations to determine “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”

Illustration by: Matt Mahurin

But while the Holder probe is expected to be narrow, focusing only on about a dozen cases already investigated and not prosecuted by the Bush Justice Department, the content of the CIA inspector general report suggests that a far broader investigation is warranted. The report makes clear that virtually every step taken was approved by higher-level officials in the government, including lawyers in the Department of Justice. So the newly appointed Assistant U.S. Attorney John Durham, who’s already investigating the destruction of the videotapes of CIA interrogations, may find it impossible — or at least very difficult — to conduct a thorough and ethical investigation that stays within those narrow bounds.

Take, for example, the fact that the report explicitly acknowledges that the Department of Justice approved the use of certain so-called “enhanced interrogation techniques” in ways that were more extreme and more frequent than its written legal memos allowed.

“With respect to two detainees at those [secret CIA] sites,” says the report, referring to terror suspects Abu Zubaydah and Abd Al-Rahim al-Nashiri, “the use and frequency of one [enhanced interrogation techniques], the waterboard, went beyond the projected use of the technique as originally described to [Department of Justice].” But CIA interrogators did not decide to go beyond those guidelines on their own. In fact, the report continues, the “Agency, on 29 July 2003, secured oral [Department of Justice] concurrence that certain deviations are not significant for purposes of [Department of Justice’s] legal opinions.”

Justice Department officials appear to have approved the repeated waterboarding of these men. Other documents confirm that CIA interrogators used the technique on one suspect up to 183 times, and on Zubaydah up to 83 times. A prosecutor taking his job seriously would have to question Justice Department officials about who approved what and why, what instructions they were given and how those instructions were communicated.

But there’s more.

Although the inspector general’s report is heavily redacted, 33 out of 105 pages in all, it strongly suggests that all of the guidelines governing the detention and interrogation of detainees were approved by Justice Department lawyers. Yet the report also suggests that the way the guidelines were written and approved was so vague as to encourage their violation.

The report says that “[a]lthough the [Department of Central Intelligence] Guidelines are an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Of course, vagueness isn’t a crime. It may be just bad lawyering. But if Justice Department lawyers deliberately wrote or approved the CIA’s guidelines in a way that was vague and left “substantial room for misinterpretation” so as to encourage their violation, then they were not acting in good faith. And if they knew that the guidelines, as written, were likely to lead to illegal conduct, then they could be liable for conspiracy to commit torture.

The lawyers’ intent in interpreting the law and approving legal guidelines is key. And for a prosecutor investigating how certain terror suspects came to be tortured and even killed during their interrogations, looking into how the techniques that led to the abuses were vetted and approved would seem to be an integral part of any “preliminary review” that Holder may be contemplating.

The vagueness of the guidelines isn’t the only evidence of bad faith on the part of the Justice Department’s lawyers. Just take a look at Footnote 26 of the IG report.

The footnote makes clear that the Justice Department lawyers at the Office of Legal Counsel accepted the CIA’s explanation that waterboarding would cause no lasting harm because the technique is used in a more limited way on U.S. soldiers in their Survival, Evasion, Resistance and Escape, or SERE, training, which teaches them to withstand an enemy interrogations.

Footnote 26 points out, however, that medical professionals told the inspector general that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

In fact, critics of the CIA program have been making the point for months now that repeated, persistent near-drowning, days at a time of sleep and food deprivation, painful stress positions and the range of other techniques used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military simulations by fellow troops.

Maybe it’s possible that the lawyers didn’t think of that themselves. Similarly, maybe it’s possible that, as they wrote in their legal memos, they believed that these techniques would not “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process. (The lawyers concluded in their memos that none of these techniques rose to that level.)

Maybe these lawyers were just taking the information they were given and doing what they were told. Still, it would seem that a serious prosecutor probing whether CIA interrogators broke the law would have to ask how and why the Justice Department’s lawyers advised the interrogators based on a factual scenario that seems patently implausible.

Holder’s announcement that he’ll open this preliminary review has provoked reactions ranging from praise to outrage. The Center for Constitutional Rights said Monday that “Responsibility for the torture program cannot be laid at the feet of a few low-level operatives.” While some CIA agents may have gone beyond the limits set out by the lawyers “who twisted the law to create legal cover for the program,” the group stated, “it is the lawyers and the officials who oversaw and approved the program who must be investigated.” The organization called on Holder to appoint an independent special prosecutor “with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program.”

Others, such as former FBI and Defense Department interrogators, have praised the decision to investigate, but called for a broader probe by an independent commission as well. “A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty,” wrote former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander to the chairmen of the House and Senate Judiciary and Intelligence Committees.

And Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) himself issued a statement on Monday saying that the CIA report “underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture.”

Whether as part of the criminal probe by Durham or as part of a broader investigation by an independent prosecutor or commission, a more thorough investigation may be unavoidable — at least, if the CIA inspector general report receives the careful reading it deserves.

iStockphoto

Anyone who’s ever purchased a home knows that the appraisal is a key component. Buyers rely on the appraisal to ensure that they’re not overpaying for their prospective home, while lenders need to make sure they’re not lending more than the home is worth.

But these days, getting an appraisal can be trickier than ever.

Illustration by: Matt Mahurin

As of May 1, new legislation called the Home Valuation Code of Conduct makes getting an appraisal costlier and more time-consuming for would-be buyers to procure — and the added time can even prevent purchasers from getting the best possible mortgage on their new home. This creates a stumbling block for home buyers at a time when the market can ill-afford to discourage buyers. And that’s not even the worst problem.

Advocates for the appraisal industry say that a move towards less-qualified appraisers prompted largely by the requirements of the new regulations mean that already depressed home prices are being undervalued even further. The problem has gotten so severe that even real estate trade groups that called for enhanced oversight in the first place are now working to dismantle its key provisions. And the controversy, some say, also shows how difficult it can be to reform even some of the most egregious practices blamed for creating the housing bubble in the first place.

“Initially we were in full support of the concept because we have for several years now been trying to get the powers that be to recognize that there were significant pressures placed on appraisers to meet certain values,” said Leslie Sellers, president-elect of the Appraisal Institute, a voluntary membership organization that certifies appraisers. Sellers added, “The unintended consequences have created havoc.”

Reforming the appraisal process goes back to earlier this decade, as home prices around the country inflated to what turned out to be unsustainable levels. Appraisers complained on blogs and industry message boards of being pressured by mortgage brokers, lenders and even builders to “hit a number,” in industry parlance, meaning the other party wanted them to appraise the home at a certain amount regardless of what it was actually worth. Appraisers risked being blacklisted if they stuck to their guns. “We know that it went on and we know just about everybody was involved to some extent,” said Marc Savitt, the National Association of Mortgage Banker’s immediate past president and chief point person during the first half of 2009 as the industry geared up for the rollout of the legislation.

Critics of the new regulations say problems started right at the beginning. Instead of being developed at the behest of and in collaboration with appraisers, HVCC was borne out of a settlement deal between the New York Attorney General’s office and Fannie Mae and Freddie Mac, the two giant government-sponsored entities that together make up the engine of the mortgage business. Why the GSEs were targeted by the state of New York is still unclear. The Center for Public Integrity has filed FOIA requests for correspondence between the two entities and the Attorney General to try and find out. Most players in the industry assume that Fannie and Freddie came under fire for buying and selling loans backed by inflated appraisals without verifying if the values were legitimate.

Prior to May 1, many appraisals were ordered by mortgage brokers. It was a convenient, if sometimes overly cozy, relationship. Brokers would go to local appraisers in the hopes of getting a valuation that would reflect a deep knowledge of the town, neighborhood and even street on which the property was located. Some lenders ordered appraisals directly, often through middlemen called appraisal management companies. The HVCC shook up the status quo by forbidding brokers to order appraisals; instead, that task now falls to lenders. Lenders, many of them big, national banks, have turned to appraisal management companies to manage the ordering process rather than try to forge individual relationships with literally thousands of individual appraisers across the country.

As a result, these appraisers have had to align themselves with the AMCs or run the very real risk of going out of business. Although the HVCC currently is only scheduled to be in place for 18 months, once banks create the new AMC-based infrastructure to manage appraisal ordering, it’s likely that individual appraisers will be left out of the loop for good.

The appraisers, not surprisingly, aren’t happy.

First of all, they point out, pressure to “hit a number” came not just from brokers but from lenders and even appraisal management companies as well. The HVCC in its current structure only addresses part of the problem while concentrating power in the hands of the AMCs. The other problem is that AMCs themselves aren’t exactly blameless. In fact, the New York AG’s initial investigation included not only the GSEs and mortgage lender Washington Mutual, but an AMC, too, a firm called eAppraiser.

“This is the bizarre part,” said Brian Davis, a Bloomington, Ill.-based appraiser and founder of the blog Appraisal Scoop. “The original problem was pressuring of appraisers by an appraisal management company, and this puts AMCs in the catbird seat.”

Davis isn’t alone in his view. “AMCs have a lot of money to gain in this. Even if the HVCC is overturned at some point a lot of appraisers are going to be out of business,” said Joseph Eaton, staff writer at the Center for Public Integrity. “It puts the AMCs in a great situation.”

Given that one of the corporations is embroiled in the initial scandal, many in the real estate industry question why the resulting legislation assigns such a major role to these entities.

“More qualified appraisers are dropping out, and using lower appraisals creates lower value down the line,” said Leslie Sellers of the Appraisal Institute. To cover their overhead, Sellers says AMCs are paying appraisers less but charging lenders — who pass the cost along to buyers — more per appraisal. As a result, less-experienced appraisers are taking on the lion’s share of the work, while appraisers who demand a higher fee turn down the AMCs’ offers for more lucrative work.

In addition, these novice appraisers may be valuing homes in areas outside their scope of expertise. Particularly in densely populated areas, even an appraiser who knows one neighborhood well could be completely unfamiliar with another neighborhood or town a short drive away. Industry insiders like the Appraisal Institute’s Sellers also says AMCs demand turnarounds of as little as 24 hours, leaving appraisers little time to do research on unfamiliar locations.

This combination of factors will lead to an artificial depression of home prices beyond the trough created by the subprime crash, Sellers says. Whereas an experienced appraiser would know his or her market well enough to not include foreclosures and short sales when evaluating comparable sales, someone who drove in for the first and only time that day would have no way of discerning these small but crucial details. While no one in the industry denies that homes were valued beyond what they were truly worth during the go-go years, appraising them at fire-sale prices only adds to the market’s pain.

Appraisers’ harsh words for the program were echoed by the National Association of Mortgage Bankers. “Although the HVCC doesn’t mention AMCs, it’s kind of a back door promotion of the AMCs. AMCs are unregulated, and they’re controlling the entire housing market,” charged NAMB’s Marc Savitt.

Even more worrisome, the second part of the HVCC, the creation of an enforcement entity to be called the Independent Valuation Protection Institute that would field complaints of appraisal coercion, has been placed on the back burner due to budgetary concerns. “We need to put some real teeth into this thing,” Savitt said.

Compounding this lack of oversight, a lack of regulation in the AMC industry means that even appraisers who actually are disciplined for artificially inflating home prices can get right back into the business by setting up shop as an appraisal management company and hiring others to do the work for them.

Industry watchdogs point to yet another way the HVCC open the door to impropriety: banks themselves are allowed to own up to 20 percent of the appraisal management companies who do work for them. While Jeff Schurman, executive director of the Title/Appraisal Vendor Management Association, an industry trade group that counts AMCs among its member base, calls potential conflicts of interest a “non-issue,” others voice skepticism that an AMC wouldn’t feel pressure to deliver for its parent company.

Even the companies one would think would be jumping for joy — the AMCs themselves — are decidedly lukewarm about the HVCC. “Our comments were very critical for a couple of reasons,” says Jeff Schurman of TAVMA. A big complaint TAVMA shares with most other real estate industry groups is the issue of portability. Previously, a would-be home buyer could get an appraisal through their broker, then shop around to get the best deal on a mortgage. Now, since the lender is in charge of ordering the appraisal, the home buyer can’t use it if they decide they can get a better deal from another bank. Instead, they’ll have to pay for a second appraisal ordered by that lender. This not only means an added cost for buyers, but it’s a potential disincentive for lenders to compete on rates, since buyers will be reluctant to switch lenders after they’ve already spent as much as $750 for an appraisal.

With all of these issues coming to the surface, perhaps it’s no surprise that the industry is battling hard to alter or outright scrap the HVCC. The current president of the Appraisal Institute has been meeting with representative of Fannie Mae and Freddie Mac to try and tweak the verbiage and the requirements contained in the regulation, while a bipartisan bill in the House of Representatives calls for an 18-month moratorium on the regulation. While almost no one in the industry denies the need for oversight in the appraisal process, the HVCC places significant strain on an already damaged housing market.

Martha C. White is a freelance journalist in New York.

US Attorney General Michael Mukasey (WDCPix)

It’s been exactly one year since then-Attorney General Michael Mukasey proposed in a speech at the American Enterprise Institute that Congress pass legislation declaring a new, expanded war with al-Qaeda and the Taliban — thereby granting the president the authority to detain indefinitely members of those groups anywhere in the world where they’re found.

That proposal from a lame-duck Attorney General never got very far with the Democratic-controlled Congress. But a year later, the country is still debating that exact same detention authority. And news reports suggest that President Obama may seek precisely the same sort of authority that Mukasey was talking about.

Illustration by: Matt Mahurin

Although the Detainee Policy Task Force yesterday announced it was taking a six-month extension on its deadline to formulate the policy, reports from National Public Radio, The Washington Post and Politico have all quoted anonymous Obama administration officials saying the president intends to create or continue some sort of indefinite detention system for suspected terrorists associated with al-Qaeda or the Taliban, whether through new legislation or mere “consultation” with Congress.

“There is no intent in the administration to rely on anything other than congressional authority,” one senior administration official reportedly told The Washington Post.

Whether that authority would take the form of an entirely new system of administrative detention outside the authority of the laws of war, as some have proposed, or whether it would rely either on the existing Authorization for the Use of Military Force, or seek a new authorization, is unclear.  The anonymous officials aren’t explaining (or don’t yet know) how the administration intends to go about solidifying its legal authority to indefinitely detain suspects without charge or trial arrested around the world.

The question arises because the Supreme Court, in Hamdi v. Rumsfeld, affirmed that the president does have authority to detain combatants arrested on the battlefield in a conventional war, which the United States was engaged in with Afghanistan at the time. Since then, lower federal courts have ruled that the United States can detain combatants who are members of al-Qaeda or the Taliban. But it’s not clear if that authority would reach countries where there is no active combat — or if the authority described in the Hamdi decision  at some point runs out.

In attempting to answer that question a year ago today, Michael Mukasey, in a speech delivered to the American Enterprise Institute, said that Congress should:

acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans—soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Today, Obama — or at least members of his administration — appear to want something very similar.

“It’s hard to see how they would end up writing anything much different from what Mukasey proposed a year ago,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington. “And that was dead on arrival.” Although the issue was raised at congressional hearings, proposed legislation never received enough support even to get to the floor for a vote.

Last summer, Anders described the idea on the ACLU’s blog as “a multi-part plan to violate the Constitution” that would “give a president worldwide power to declare anyone a terrorist and hold the person forever – without ever charging anyone with a crime.”

Although it’s possible that Obama would have more sway with Congress than Bush did, the leaders of the judiciary committees in both the House and Senate have publicly opposed a preventive detention plan that would detain suspected terrorists that the president deems “dangerous” without charge or trial; the chairmen of the House and Senate Armed Services Committees have likewise expressed reluctance.

So could Obama really get new authorization for preventive detention? Or will he try to rely on the old one, and issue an executive order or presidential memorandum clarifying (or extending) its scope? One reason he might want to seek new authorization is that, as David Kris, assistant attorney general for the Justice Department’s National Security Division,  recently testified before the Senate Armed Services Committee, the authority the Supreme Court acknowledged in Hamdi could eventually “run out.” After all, the laws of war only authorize detention for the duration of active hostilities.

Anders said that in his conversations with lawmakers on the Hill, he hasn’t heard of any proposed legislation being circulated. “No one I’ve come across so far has seen or heard anything from the administration about an indefinite detention proposal,” he said.

In an e-mail, Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, cautioned that new legislation could lead to far broader authority for indefinite detention than even Obama envisions.

“For me, the answer to this question decides the whole ball game — if they go to Congress, what will inevitably emerge is a broad preventive detention system regardless of what the Obama administration wants. If they rely on AUMF authority, then it can be much more narrow.”

Sen. Jeff Sessions (R-Ala.) meets with Sonia Sotomayor on June 2. (Zuma Press)

Amid the posturing by senators on both sides of the aisle, the outlines of a long-running debate over the role of judges in the American legal system emerged on the first day of the confirmation hearing of Judge Sonia Sotomayor.

Whether judges are neutral, “objective” arbiters of the law or biased individuals who impose their own views and life experience on legal interpretation is a debate that dates back to the early 20th century and included such famous justices as Oliver Wendell Holmes and Louis Brandeis, who argued that law is indeterminate and judges are flawed human beings influenced by external factors.

Illustration by: Matt Mahurin

Since then, scholars and judges have taken that idea in various directions. Monday the debate was on display in full force again in the Senate, with the quality of “empathy” that President Obama said he prized being on the one hand defined by Democratic supporters as “humanity” and by Republican critics as “bias.”

As Ranking Republican Jeff Sessions (R-Ala.) put it in his opening statement: “Empathy for one party is always prejudice against another.”

Sen. Tom Coburn (R-Okla.) similarly criticized the notion that “empathy” is a desirable quality for a Supreme Court justice, noting that it suggests that the law can be interpreted in various ways.

“I’m deeply concerned by your assertion that the law is uncertain,” said Coburn, addressing Sotomayor. “We want justice to be predictable. I’m worried that our Constitution may be seen to be malleable and evolving, whereas I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.”

Sotomayor, for her part, has never said that her opinions should trump the law or the Constitution. On Monday, she described her judicial philosophy as simply “fidelity to the law.” But she has also acknowledged repeatedly that her background and upbringing may influence her view of a situation. As she described it Monday: “My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

In other contexts, however, usually addressing Latino law students, Sotomayor has said, in a statement repeated over and over by Republicans at Monday’s hearing, that “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”

CNN reports that “that sentence, or a similar one, has appeared in speeches Sotomayor delivered in 1994, 1999, 2002, 2004 and 2001,” and it’s become the basis of Republican objections to her confirmation to the court.

Democratic supporters yesterday defended her “empathy” and denied that it’s the equivalent of bias. “We want a nominee with a sense of compassion,” said Sen. Herb Kohl (D-Wisc). “Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.”

Quoting Justice Clarence Thomas from his confirmation hearing, Kohl said it is important that a justice ” ‘can walk in the shoes of the people who are affected by what the Court does.’ I believe this comment embodies what President Obama intended when he said he wanted a nominee with ‘an understanding of how the world works and how ordinary people live.’ ”

Although defending Sotomayor’s “understanding” and “compassion,” Democrats are also aware that some of her past remarks represent her greatest vulnerability, and they’ve tried to keep the focus on Sotomayor’s 17 years’ worth of written judicial opinions. Independent studies from the Congressional Research Service, SCOTUSblog and the Transactional Records Access Clearinghouse have concluded that her decisions reflect neither activism nor liberal bias. But Republican senators at yesterday’s hearing repeatedly argued that her statements outside the courtroom are more telling than her judicial opinions because, as a Supreme Court justice, she would not be bound by precedent nearly as much as she was on the court of appeals.

Sen. Orrin Hatch (R-Utah), for example, warned that on the Supreme Court “Judge Sotomayor will help overturn the very precedents that today bind her” on the court of appeals. “The judicial position she will take on the Supreme Court will be very different than the position she has on the Second Circuit.” Therefore, he argued, her extrajudicial statements – in speeches, in law review articles, in career counseling seminars — ought to be seriously considered.  Although “we are urged to ignore her statements and focus only on her judicial decisions,” Hatch said, “We show respect to her by taking her entire record seriously.”

Democrats shot back by criticizing the record of Republican nominees, who they claimed had become, contrary to their initial promises, the most activist justices on the Court. Chief Justice John Roberts, in particular, came in for criticism for, during his confirmation hearing, likening a judge to an “umpire” at a baseball game calling “balls and strikes”; Roberts then ended up playing a far more activist role as a justice.

“The “umpire” analogy is belied by Chief Justice Roberts,” said Sen. Sheldon Whitehouse (D-R.I.). Quoting a recent article in The New Yorker by Jeffrey Toobin, Whitehouse said: “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Some umpire.”

In fact, Whitehouse argued, under Roberts’ leadership in recent years: “the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights,” he said, such as “the first limitation on Roe v. Wade that outright disregards the woman’s health and safety” and a decision striking down a gun restriction in Washington, D.C. “discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”

Whitehouse continued: “The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.”

But Whitehouse, like all of the senators yesterday, was not really there to debate judicial philosophy or constitutional history. The senators were talking largely to their own constituents, and not to the other side. Sotomayor is widely expected to be confirmed, but Republicans appear to be voicing objections they expect their conservative constituents to have — about Sotomayor, and about larger social issues.

Republicans remained rigid in their views that Sotomayor’s acknowledgment that different people will have different perspectives on the law was a troubling sign. Sotomayor’s statement that “There is no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging,” said Coburn, is “deeply troubling.”  He added: “The fact that it’s subjective implies that it’s not objective. And if we disregard objective consideration of facts, then all rulings are subjective and we lose the glue that binds us together as a nation.”

Of course, Coburn’s ideal of perfect predictability in the law that allows an escape from judgment and perspective would obviate the need for a Supreme Court — and for the Senate’s confirmation hearing.

For better or worse, the majority of senators haven’t gone that far, and Sotomayor’s confirmation hearing continues Tuesday.

Judge Sonia Sotomayor (Zuma Press)

Most commentators and reporters have assumed that when it comes to Judge Sonia Sotomayor’s record, there’s little to suggest how she might rule on critical matters of executive power and national security that are sure to be among the most controversial issues before the court in the next few years.

One exception to that is a Fox News report on Tuesday, which cites Sotomayor’s March 2003 lecture to a class at Indiana University Law School, where she said, “We have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.”

Illustration by: Matt Mahurin

To Lee Ross at Fox News, this was a pronouncement “that could draw criticism from liberal groups.” But in the context of the entire lecture, which Sotomayor provided, along with a mass of other materials, to the Senate Judiciary Committee on Monday evening, the statement appears to be simply an explanation to law students of where the courts had come down on the issue so far. The issues would eventually reach the Supreme Court, which would affirm the government’s right to detain certain enemy combatants indefinitely. But at that time only a district court from the Southern District of New York and the U.S. Court of Appeals for the Fourth Circuit had addressed the questions.

Notably, The New York Times on Wednesday focuses on a different part of the lecture in which Sotomayor expresses skepticism about the government’s authority under the USA Patriot Act “to impose nationwide wiretaps with little judicial supervision” and to monitor use of the Internet.

While reporters and bloggers have noted that Sotomayor has never worked in the federal executive branch and has sat on courts that don’t hear many executive power challenges, her record from the bench is not a blank slate. In fact, just last year, she joined two other judges in ruling that sections of the USA Patriot Act regarding national security letters are unconstitutional. And in the case of the Canadian former detainee Maher Arar, arrested while changing planes at John F. Kennedy airport and rendered by U.S. authorities to Syria to be tortured, he claims, Judge Sotomayor played an active role in a heated two-hour argument before the full 2nd Circuit Court of Appeals in December. (The court has not yet issued its opinion.) Both of those cases — largely overlooked by the media as indicators of Sotomayor’s inclinations on executive power — suggest that Sotomayor will be no wallflower in cases challenging unchecked executive authority in matters of national security.

What Judge Sotomayor actually believes the law is when it comes to the treatment and detention of suspected terrorists, and the type of justice they’re afforded, is critically important to how the Supreme Court will rule on these issues in the coming years, however. As Charlie Savage wrote recently in The New York Times, the impact of a new justice on presidential power could make all the difference. “Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantanamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court,” Savage explained. Justice Souter was a strong proponent of limits on executive power, voting to strike down the first incarnation of military commissions created by President Bush, and voting in favor of providing Guantanamo detainees’ habeas corpus rights. A new judge could swing the majority the other way. And both of those issues — the new Obama military commissions and habeas rights for detainees at other U.S. prisons abroad, such as Bagram — are likely to reach the Supreme Court in the next few years.

“To my mind, this is the most significant issue for the court, especially given the radicalism of Roberts and Alito on presidential supremacy,” wrote Andrew Sullivan on his blog at The Atlantic recently.

In the 2008 ruling Doe v. Mukasey, Judge Sotomayor joined an opinion written by Judge Jon Newman that struck down parts of the USA Patriot Act. The law put a “gag order” on companies that received a National Security Letter from the FBI requiring the company to turn over information about their customers, and required the recipient of the letter to go to court to have the gag order lifted. The three-judge panel of the 2nd Circuit, including Sotomayor, ruled that it was the government’s burden to justify to a court why it had to silence an NSL recipient. The court also invalidated sections of the Patriot Act that required judges to assume as true the FBI’s claims about what would harm national security.

As the court wrote: “There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is ‘conclusive’ on a reviewing court, absent only a demonstration of bad faith. … The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’”

While it’s hardly a radical position for a federal court to reject a government’s arguments that its positions are unreviewable by any court, it does suggest that Sotomayor is willing to stand up to broad executive claims of unreviewable power in matters of national security. That’s likely to come up in cases raising the matter of state secrets, “preventive detention” of suspected terrorists and the creation of military commissions.

Sotomayor herself was explicit about her suspicion of the government’s assertion of unreviewable power in the national security context during the argument in Arar v. Ashcroft. Sotomayor wasn’t physically present in the courtroom, but her larger-than-life image was beamed on a screen via satellite teleconferencing technology, giving her what one blogger called “a Star Trek immensity.”

The government’s lawyer, Jonathan Cohn, was attempting to argue that the case is so “inextricably bound” with matters of foreign policy and national security that the courts should just stay out of it, since those are the exclusive domains of the executive branch.

Sotomayor, like many of her colleagues, was skeptical. In her most striking exchange with the government’s lawyer, she asked, “are you saying that there should be no Bivens action [a right to sue federal officials] for any torture by a federal agent?”

Cohn quickly said no, that’s not the government’s position, unless the issue is “fraught with national security implications.”

Sotomayor pressed the point: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Although Cohn claimed again that he was not saying that, Sotomayor had correctly seized upon the implication of his argument — that the government cannot be sued for torture so long as it claims that the suit raises foreign policy or national security concerns. And the nature of her questioning suggested strongly that she did not agree.

Capitol Hill (WDCpix)

While the steady rise of the nation’s unemployment rate has become shorthand for the recession’s impact, many economists say the grim figures — 8.9 percent in April — don’t tell the whole story of Americans’ financial distress. While the plight of the jobless tends to dominate social policy conversations and media coverage, a less-exposed but equally vulnerable population is the millions of underemployed. This diffuse, often poorly tracked cross-section of citizens who bear the individual and collective challenges living on the economic fringes often go overlooked by policy makers and elected leaders.

Illustration by: Matt Mahurin

“The number of people under economic stress is much bigger than the official unemployment rate,” said Chad Stone, chief economist at the Center on Budget and Policy Priorities. Who are these people? The Bureau of Labor Statistics takes a stab at quantifying these people to create a more comprehensive picture of who’s not working and why not. The Bureau identifies categories of Americans it labels as “marginal,” meaning that they are unemployed and have looked for a job in the past, but not recently, and “employed part time for economic reasons,” referring to workers who would take full-time schedules if they could. Once these groups are added to the base unemployment rate, the number climbs all the way up to 15.8 percent in April, the highest number since the BLS began tracking these sub-groups in 1994.

Yet there are some who say even these numbers don’t tell the whole story. Progressive think tanks talk about “skill underemployment.” “It’s the computer engineer who lost [his] job and is now working at 7-11,” said Heidi Shierholz, an economist with the Economic Policy Institute. “They show up as employed, not as a bad labor market outcome,” she said. In reality, though, these workers, are both earning and contributing far less than their potential — one definition of underemployment. The labor bureau’s data-collection also doesn’t take into account the millions of Americans who have had their hours or wages cut in recent months.

There’s no single agency that tracks the underemployed, so researchers have to cobble together data from all corners of the economy to come up with an estimate on disenfranchised workers. According to Philip Harvey, a professor of law and economics at Rutgers School of Law, the United States is short by nearly 23 million jobs, a far greater number than the 13.7 million of officially unemployed workers.

Gertrude Goldberg, chair of the National Jobs for All Coalition, says that lowballing the number of distressed workers leads to an inadequate response. “By under-defining it you reduce the notion of a mass of people at risk in terms of tomorrow,” she said. And while they may disagree on precisely how to count underemployed Americans, nearly all agree that their growing numbers could lead to problems both in the short term as well as in the future.

“When you have productive people that can’t get the hours they need, that represents a huge contraction for the economy,” said Heidi Shierholz of the Economic Policy Institute. Lower paychecks in the case of forced part-time employment means less money going into federal, state and city tax coffers, at a time when many local governments can ill afford a shortfall.

Social Security also takes a hit, according to Shierholz. “To the extent that people paying into Social Security are paying a percentage of their income, as people are seeing their hours reduced, that reduces their weekly paychecks, so that will reduce the amount they pay into Social Security.” In reference to recent concerns about the longevity of the Social Security trust fund, she said, “it is absolutely a contributor to this.”

As bad as this sounds, the damage to individuals’ own retirement accounts is even greater. “One of the biggest factors for having larger 401(k) balances is continuous participation in a plan,” said Craig Copeland, senior research associate for the Employee Benefit Research Institute. Since 401(k) contributions grow from stock market gains, workers who are laid off even briefly miss out on the chance to invest while the stock market is low. Companies are allowed to impose a one-year waiting period on new hires’ participation in retirement plans, so the unemployed who return to the workforce face a “time out” period that could cost them dearly in the long run.

The workers classified as involuntarily part-time by the Bureau of Labor Statistics face even greater hurdles. According to EBRI research, in 2007, only18 percent of male and 26 percent of female part-time workers participate in employer-offered retirement benefit plans. The reason for this is twofold, said EBRI’s Copeland. These employees are less likely to have the extra income to invest in a retirement plan. In addition, most companies don’t even offer retirement benefits for those who work fewer than 20 hours a week.

Underemployment also means that a worker’s Social Security benefits could be reduced when he or she collects them in retirement. This combination of reductions in private and public income streams means that when these potentially millions of underemployed Americans exit the workforce, the government could be facing a crisis of underfunded retirees.

Implications for health insurance are also troubling. Elise Gould, health economist at the Economic Policy Institute, says that in 2007, the most recent year for which statistics are available, only 55 percent of part-time employees had employer-sponsored health insurance, as compared to 74 percent of their full-time counterparts. It’s likely that these numbers have dropped further since then, she added. “There’s been a downward trend in these since 2000, and I would expect these to have only gotten worse.”

This health care gap has serious consequences, according to David Dooley, chair of the department of psychology and social behavior at the University of California, Irvine. Dooley studied the mental-health effects of underemployment as compared with unemployment. Rates of depression, alcohol abuse and other markers were similar for both groups. “The general patterns is that we get the expected adverse effects of complete job loss with inadequate employment,” he said.

However, while programs such as Medicaid and COBRA exist to help the unemployed, there are no comparable health care alternatives for underemployed workers. “If people show signs of depression or increased drinking, they’re not going to have the resources for early intervention,” said Dooley. “If they’re in a downward spiral there’s not going to be anyone to slow it down.”

Despite these troubling clues, though, people like Gertrude Goldberg of the National Jobs for All Coalition say the government hasn’t been aggressive or inclusive enough in designing stimulus programs that help out the underemployed as well as the unemployed. Although the federal government has extended unemployment benefits and given states money to boost the benefits by a nominal amount, none of this helps the employee forced to work a four-day week or take a part-time job to replace lost full-time employment.

Heidi Shierholz of the Economic Policy Institute says not to count on the promised job creation benefits of the stimulus either. “By the time the stimulus package was implemented it was already behind,” she said. “It was only expected to create between three and five million jobs. By the time it got off the ground we were seven million jobs in the hole.” She and others warn that if the underemployed are allowed to slip through the cracks, economic recovery will be all the more elusive.