The men had brought the case, Turkmen v. Ashcroft, claiming that they were wrongly arrested as suspected terrorists based on racial profiling by immigration officials. They claim they were abused in detention in New York, and held for months after they were no longer suspected of being terrorists. As is usually the case with a settlement, the government did not admit wrongdoing. However, the government in 2007 charged several guards at the Metropolitan Detention Center in Brooklyn, where the men were detained, with prisoner abuse.

Another case that had similarly charged abuse of prisoners after Sept. 11, Iqbal v. Ashcroft, was dismissed by a divided Supreme Court in May on the grounds that the plaintiffs there had not alleged sufficient facts of discrimination based on race, ethnicity or religion. Lawyers in the Turkmen case at the time said that they’d had more opportunity to collect evidence supporting their case because the district court had allowed it to move forward.

Two more men who are plainitffs in the Turkmen suit did not reach an agreement with the government and will continue to pursue the case. CCR is also asking the court for permission to add five more plaintiffs to the case.

JURIST has more details.

The mother, Baltazar Cruz, now faces deportation, while her baby was given to a couple in Ocean Springs, Miss.

At this point, it’s not clear if there was some miscommunication that contributed to Cruz losing her baby — Cruz speaks only Chatino (an indigenous language native to Mexico), barely any Spanish and no English. The hospital relied on the translation by an American of Puerto Rican descent who spoke no Chatino and whose Spanish was significantly different from the way it’s spoken in Mexico.

According to the Mississippi Clarion-Ledger, the state of Mississippi, based on that translation, portrayed Cruz as essentially a prostitute (in fact, she was working in a Chinese restaurant) and insisted that the child be put up for adoption. Since “she has failed to learn the English language,” the newspaper quotes [state] documents as saying, she was “unable to call for assistance for transportation to the hospital” to give birth.

Lawyers from the Mississippi Immigrants’ Rights Alliance and the Alabama-based Southern Poverty Law Center are now trying to help Cruz get her baby back, but they can’t comment on the case because a judge has imposed a gag order.

Harold Koh at an April 28 Senate confirmation hearing (Zuma Press)

On Monday, nearly four months after President Obama nominated Harold Koh to become legal adviser to the State Department, Sen. Harry Reid (D-Nev.) filed cloture and moved his nomination to the floor. Confirming the dean of Yale Law School to a powerful but usually uncontroversial position had proven harder than either his supporters or his detractors could have expected.

“When you consider Dean Koh’s impressive resume,” said Steven Groves, a fellow at the Heritage Foundation who signed a conservative coalition’s letter opposing Koh’s nomination, “this process should have been more of a coronation than a fight. It’s only become a fight because serious issues were raised on his views of transnational law.”

Image by: Matt Mahurin

Koh’s qualifications for the State Department job have never really been in dispute. A veteran of both the Reagan and the Clinton presidencies, a summa cum laude graduate of Harvard Law School who counts Sen. Russ Feingold (D-Wis.) and Alan Dershowitz among his friends, Koh’s nomination was welcomed by several influential Republican lawyers. Ken Starr, the former Clinton foe who is now Dean of Pepperdine University Law School, remembered Koh as a “vigorous adversary” but commended him to the U.S. Senate as a “truly great man of irreproachable integrity.” Ted Olsen echoed Starr, calling Koh a “brilliant scholar and a man of great integrity.” John Bellinger, who served as George W. Bush’s final legal adviser to the State Department, welcomed Koh as a “well qualified” candidate who “should be confirmed.”

After all of that came months of attacks, wrangling, and stale-mating over Koh’s thinking on “transnational” law and belief that American jurisprudence should respect for “the opinions of mankind,” as he put it in 2002. This reached a certain level of farce last week, when Koh’s brother Howard was confirmed, controversy-free, to a post in the Department of Health and Human Services. And the saga may or may not end with Koh’s confirmation. The majority leader is “optimistic we will have the 60 votes needed,” according to spokesperson Regan Lachappelle. But on Monday afternoon, Reid saw that Republicans “would not agree to an up or down vote” and that Democrats had “no choice but to file cloture.” All sides expect a contentious, tip-and-tuck vote, and Democrats are prepared for a debate that could last several days if outspoken opponents of the nomination such as Sen. Jim DeMint (R-S.C.) decide to drag out the process.

Whatever the result of the vote, conservatives are ready to declare some small victories. Koh, long seen as a possible nominee for the Supreme Court, has been widely portrayed as a judicial radical and supporter of international law who — in the words of Fox News host Glenn Beck — “may shred the Constitution in favor of international law.” In the process, a small group of conservative activists have moved ahead the idea that American sovereignty is under attack from international treaties. Some argued that the delays revealed a lack of confidence from congressional Democrats that they could win a pitched, public debate over “transnationalism,” although the filing of cloture on Monday suggested that Democrats are ready to take some heat over an issue that remains fairly obscure.

The Koh nomination became a cause for some conservative activists despite — or perhaps because of — early support from Sen. Richard Lugar (R-Ind.), the ranking member of the Senate Foreign Relations Committee. At the April 28 hearing on the nomination, Lugar read apologetically from a Time magazine article on right-wing attacks from the likes of Glenn Beck and John Bolton. “Without going into the problems of the Republican Party any further,” said Lugar, to audible laughter, “there is some substance to this type of atmosphere that has been created, not only in the blogosphere but in Time Magazine and elsewhere.” Lugar explained that the primacy of the Constitution was “a source of concern for many Americans.”

Koh argued that his much-cited work on “transnational” law should not present much cause for concern. “The basic theme of all of my writing,” he said before the committee, “is that a partnership between the president and Congress protects our foreign policy and supports our Constitution, and that a partnership with our allies — done well, correctly, within the law, protects our sovereignty and makes us safer.”

It was immediately clear that Koh would not get the same deference from the rest of the committee’s Republican members. Conservative activists and lawyers who were familiar with the long campaign against Koh — one recalled speaking at as many as a dozen meetings on the risks his nomination presented — were active in providing skeptical Republicans with quotes from Koh’s speeches and troublesome arguments such as his 2004 statement that the United States had joined an “axis of disobedience” in flouting international law. At the April 28 hearing, Sen. Bob Corker (R-Tenn.) informed Koh that he had been “watching the body language” and saw the dean “reading the answer” about international law. “You know, you’re the dean of Yale Law School and probably one of the most knowledgeable people to ever come before this group as it relates to law. But it did appear to me that you were reading that answer and I’m just wondering if you might speak to that, because typically, when people do that they’re sort of tight roping down an issue that they’re concerned there may be some baggage on. Maybe I saw wrong.”

In the end, Lugar was the only Republican member of the committee to vote for Koh. On Monday, his spokesman Andy Fisher confirmed that Lugar would vote for Koh, and that “nothing had changed” since the hearing. Spokesmen for the other Republicans on the committee did not comment to TWI. But conservative activists outside of the Senate, who still see a possibility of defeating Koh (”he could wash his hands of the whole thing and go back to Yale,” said one activist), said that the new attention on “transnational” law and the possibility of slowing down Senate business made the battle worthwhile. (One activist, who was interviewed by TWI before Democrats moved for cloture, speculated that Republicans could “get something,” such as a delay in the ratification of the Law of the Sea Treaty, if they made some demands of Democrats.)

“Since the administration is trying to do a serious number of bad things,” explained Grover Norquist, the president of Americans for Tax Reform who signed a letter opposing Koh’s nomination, “everything that slows it down stops another bad thing it wants to do. Now, there is an argument against just saying ‘no’ or just stalling on everything. That is why, ideally, you can have a fight about an issue — Harold Koh’s thinking on international law is a serious issue that affects gun rights, for example — and you can slow the bad stuff down. That’s the best of both worlds.”

While conservatives argued that Koh’s views could become a flash point for more controversy — something Democrats seemed to acknowledge by holding off for so long on a debate and a vote — there is no evidence that a battle in the Senate would boost Republicans. In 2005 and 2006 the party invested plenty of political capital in the nomination of John Bolton for U.S. ambassador to the United Nations, and they were bolstered by the kind of outside pressure groups that never arose to promote Koh. Still, polling revealed that Bolton’s firey rhetoric and denunciations of international law did not win over voters.

“The odds are against it becoming a defining feature of the national debate,” said Scott Rasmussen, an independent pollster who has conducted surveys about Americans’ views of international law and the United Nations. “But if you were a Senator in a competitive race, would you want a 30-second commercial saying you voted for a nominee who wants Americans to live under international law?”

Even if Koh is confirmed this week, one activist who had met with Republicans about the nomination was confident that the State Department’s work had “not moved as fast as it could have” in strategizing for the ratification of new treaties as a result of the slowed-down process. John Bellinger, the former Legal Advisor who still supports Koh’s nomination, confirmed that analysis. “It will be difficult,” he said, “for the career lawyers [in the State Department] to take new or potentially controversial positions on international law or domestic litigation issues without guidance from a new political appointee.”

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.  She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.

The Judicial Confirmation Network, calls itself “an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court” — individuals, they say, who won’t “use the power of the court to impose his or her personal or political agenda on the people.”

Here, though, is the May 16 New York Times description of how the group intends to impose its own personal and political agenda on the process.

Gary Marx, executive director of the conservative Judicial Confirmation Network, said donors, whom he declined to identify, had committed to contributing millions of dollars for television, radio and Internet advertisements that might reunite conservatives in a confirmation battle.

(H/t  Gawker.)

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In a prominently featured op-ed Monday in the Wall Street Journal, Howard, who practices corporate defense law, cunningly found a way to use President Obama’s inaugural call for a “new era of responsibility” to once again argue forcefully against the value of the rule of law.

The threshold problem for our new president, writes Howard, is that “the growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices.” Law and lawyers, he insists, have turned “Yes We Can” into “No You Can’t.”

Who knew that human motivation could be so broadly and easily quashed by the fear of lawsuits?

Helping that little old lady across the street? No way — she might turn around and sue me.  Patting a child on the back for a job well done? Nuh-uh -– I’m not going to risk getting sued for fondling children. And doctors providing real care for patients?  My god, Howard warns, these days they’re actually ordering medical diagnostic tests just in case not providing a necessary procedure gets them sued and drives up their malpractice insurance payments.

For the past decade, Howard has been distraught about how children can’t play in the playground, teachers can’t teach schoolchildren, doctors can’t treat patients and nobody can provide all the wonderful nurturing help that their true natures would lead them to — if the law would just stop getting in their way.

I can’t help thinking that this all sounds eerily like the attitude of former President George W Bush and former Vice President Dick Cheney toward the law when it came to prosecuting their “war on terror.”

United Nations Convention Against Torture? Article III of the Geneva Conventions?  U.S. Constitution?  Those laws have caused too many problems — they’re restricting our ability to torture people. We need our own lawyers, like John Yoo, to write us memos saying we don’t have to follow those inconvenient restrictions; except that those restrictions were designed to protect the legal rights and freedoms — of other people.

Howard is apparently too busy exercising his own personal freedom railing against lawyers to read the business pages, such as those of the Wall Street Journal, which, each day, document in excruciating detail how the government’s utter failure to enforce a range of laws and to regulate large swaths of the financial industry have led to a near-collapse of the global economy. Or to notice the widespread belief and grave concern — among conservatives, no less — that the government’s $700 billion unregulated, no-strings-attached bailout, which was intended to let major American banks and corporations exercise their free choice in spending public money, hasn’t really worked out that well after all.  Citigroup just reportedly spent $50 million of that money on a brand-new corporate jet.

Well, that’s freedom for you.  Or rather, for Citigroup executives.

That’s the problem with the lawyer-bashers. It’s not about the lawyers.  Howard is a lawyer, and presumably, he has no problem with the 500 or so the other corporate defense lawyers he works with at his firm.  (Coincidentally, he’s a partner in the same firm as Attorney General-nominee Eric Holder, who from all indications doesn’t have a problem with law or lawyers.) It’s the law itself that Howard doesn’t like.

But then, if you don’t have law, you just have power.

The ACLU doesn’t take positions on nominees, but “it’s a suggestion that the Obama administration will carry through on a committment to respect the rule of law,” said Caroline Fredrickson, the ACLU’s Washington director. Fredrickson, who knows Johnsen personally, said she was optimistic about the new prospective OLC chief, owing to Johnsen’s legal writings on issues like executive authority.

“To the extent she helps restore the boundaries of the executive branch vis-a-vis the other [governmental] branches,” Fredrickson said, “it’s an important effort.”

Fredrickson’s not alone. “Having looked at her writings on the subject,” said Vince Warren, executive director of the Center for Constitutional Rights, in a prepared statement, “we’re happy to see that the president is appointing someone who understands that the Office of Legal Counsel should provide a forthright and honest evaluation of the legality of proposed executive action rather than as a rubber stamp on presidential policy.”

Glenn Greenwald is pretty satisfied as well. Blogging at Salon, the man who pretty much nixed the John Brennan appointment to CIA rounds up a bunch of Johnsen’s writings on torture and executive authority and pronounces it “a positive sign.”

As I reported earlier, the 34-year-old computer consultant of Syrian descent was apprehended by U.S. authorities in 2002 while he was changing planes at New York’s John F. Kennedy International Airport, on his way home to Canada after visiting relatives in Tunisia.

After a harsh interrogation without access to counsel in New York, he was flown to Syria against his will, where he was kept in a tiny underground prison cell and tortured until he eventually “confessed” to training for terrorism in Afghanistan; in fact, he’d never even been there.

For those with a strong stomach, here’s the federal district court’s description of Arar’s early days in Syrian detention, which he claims was coordinated with US authorities:

During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him
on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a
spine-breaking [*11] “chair,” hung upside down in a “tire” for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan
and had never been involved in terrorist activity.

Arar was eventually deemed innocent and returned home to Canada in 2003, where the Canadian government confirmed that he’d done nothing wrong and apologized for its role in his arrest.

With the help of the Center for Constitutional Rights and Georgetown law professor David Cole, in 2004 Arar sued American officials in a U.S. federal court for sending him to Syria to be tortured.  But his case was dismissed on the grounds that an investigation might reveal state secrets and harm national security.  The court also ruled that, as a foreigner deported by immigration authorities, he had no right to challenge his treatment by the United States.

Although a three-judge panel of the Second Circuit affirmed the district court’s ruling, holding that Arar has no right to sue federal officials no matter what was done to him, the full court  of appeals in August made the highly unusual decision to re-hear the case.  All 12 active judges of the court are scheduled to hear the arguments from both sides at 3 p.m. in New York.  The argument will stream live on C-Span.org.

For more on the Arar case and the US government’s program of extraordinary rendition, check out Jane Mayer’s excellent piece on the subject in the New Yorker.

Sands, a professor of international law at University College London and author of “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values,” has strongly criticized the Bush administration’s use of torture and extraordinary rendition and general flouting of the rule of law. While insisting that he’s not calling on the new Obama administration to initiate any immediate criminal investigations or indictments of Bush administration officials, Sands said, “the first thing that needs to happen is establishing the facts. But if the facts are as they appear, then something is going to have to happen to allow the country to move on.”

Sands also insists the Obama administration and the new Congress should revoke the The Military Commissions Act of 2006, which “purports to provide immunity for any person associated with criminal wrongdoing in relation to the treatment of detainees. All of these [laws] send out a signal that this administration is willing to tolerate wrongdoing and criminality. That needs to be reversed.”

He would also like to see the new president “go into a little more detail and make explicit the U.S.’s reengagement with the rule of law domestically and internationally. The specifics of that mean no more torture, no more rendition, no more unilateral acts that blatantly violate rules and developing timetables for shutting down Guantanamo and ending the ‘assault’ on the International Criminal Court. [The U.S.] doesn’t need to ratify the ICC but they need to stop demonizing it.”

Read the full interview here.

“The initiative process was improperly used in an attempt to undo the constitution’s core commitment to equality for everyone by eliminating a fundamental right from just one group — lesbian and gay Californians,” said a statement from Lambda Legal, which brought one of the lawsuits in California state court, along with the ACLU and the National Center for Lesbian Rights.

The counties of San Francisco, Los Angeles and Santa Clara filed another. Gloria Allred, the civil-rights attorney, filed a third lawsuit on behalf of lesbian clients married in Los Angeles.

Two of the suits ask the courts to stop the implementation of Proposition 8 — an initiative that actually changes the California Constitution to eliminate the right of same-sex couples to marry in the state — until the court cases can be resolved.

“The court must hold that California may not issue licenses to non-gay couples because if it does it would be violating the equal protection clause, ” Allred said at a news conference today, according to The Los Angeles Times.

Gay rights groups reportedly filed the cases in state rather than federal court in part to avoid an adverse ruling from the US Supreme Court, which would represent a major setback for the gay marriage movement nationwide.

Already, 18,000 gay and lesbian couples have married in California. The California attorney gGeneral has said that the state will continue to honor those marriages.

The judge also revealed that he had voted early on Friday and had to stand in line for more than two hours. “It was quite a civics lesson,” Williams said.

The Advancement Project, which joined in the lawsuit with the NAACP, issued a statement saying, “With 500,000 new voters and high expected turnout the burden shouldn’t be on voters, it should be on the Commonwealth to make sure voting is accessible.”