The Georgia Board of Pardons today granted a 90-day stay of execution so that they could consider the new evidence in his case. The stay gets the defense closer to what they want — an opportunity to present the evidence about the witness recantations.
TalkLeft has more.
16 July 1945.
He’s back, with another crackpot theory justifying arbitrary executive power in defiance of the plain language of several constitutional provisions as well as the structure and underlying theoretical basis of the Constitution.
As Stephen Holmes points out (and expands on in his new book), it’s not just that Yoo believes as a normative matter — contrary to the fundamental principles of liberal democracy– that power is most effectively deployed when it’s secret and unchecked, but his farcical attempts to locate the monarchical executive in the original meaning of a Constitution that (although it leaves the precise contours of executive power vague) plainly cannot support such a reading:
The Framers charged the President with protecting the nation, he tells us, “even if that meant fighting with the legislature to enforce the desires of the people.” True to their British heritage, Yoo also asserts, the Framers modeled the President’s war powers on those of King George III. They therefore refused to grant Congress even a concurrent power to commence war. At its core, the Constitution embodies the Framers’ intention to prohibit Congress from “encroaching” on the executive’s power to initiate as well as conduct war.
To make his contrarian claim ring true, Yoo whites out contrary evidence and draws dubious conclusions on the basis of fragmentary and carefully selected facts. He disregards the main thrust of the historical record and misrepresents the parts he acknowledges. He ferrets out (and exaggerates the importance of) scattered shreds of evidence that, at first glance, seem to back up his predetermined narrative. This cherry-picking of the sources may explain why he fits so comfortably into an administration known for politicizing intelligence, smothering doubts, silencing critical voices and fixing the facts around the policy.
But why would an aspiring legal scholar labor for years to develop and defend a historical thesis that is manifestly untrue? What is the point and what the payoff? That is the principal mystery of this singular book. Characteristic of The Powers of War and Peace is the anemic relation between the evidence adduced and the inferences drawn. The footnotes and citations teem with ambiguity and complexity, while the summary statements snap dogmatic simplicities. For instance, in a section devoted to the powers of war and peace in various state Constitutions, between independence and the ratification of the Constitution, Yoo uses selective citation to convey the impression that state executives not only possessed substantial foreign-policy powers but were also, when commanding the state militias, freed from any obligation to act according to laws passed by state legislatures. That his case is wobbly on both counts is the least that might be said. But what makes his misleading account additionally baffling is that he cites without comment the very provisions in several state Constitutions that deny the executive branch any power to act except “under the laws” passed by the legislative branch.
Even by the standards of this administration, Yoo is an embarrassment.
Thers hears it, coming from a gun counter in North Carolina:
They aren’t stupid, either, or we’d catch them faking the news far more frequently than we already do.
I have a follow-up post on the Troy Davis case at TAPPED. Among other things, I discuss the famous Scalia concurrence in which he asserts that there is no constitutional right to bring evidence — no matter how compelling — of actual innocence after one had been validly convicted of a capital crime. But why worry?
I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.
Whatta card! And, of course, the governor will meanwhile claim that no actually innocent person could ever be convicted and have this conviction upheld for one whole round of federal habeas appeals — state criminal defendants, of course, never have anything but the best legal representation! — and round and round we go and before you know it some innocent person will be executed.
This discussion of Brookings Institute Fellow For Disastrous, Counterproductive Foreign Interventions and Bush Administration Apologism Michael O’Hanlon reminds me of my very favorite “liberal hawk” argument defending the surge, this comedy classic from Jeffrey Herf:
If the Democratic party’s national leadership continues in its opposition to the strategy Bush has just announced, and if, against expectations, that strategy is successful, Democrats may look forward to another decade or more of losing Presidential elections.
And if you don’t give my $50,000 right now for a share of my Mega Millions ticket, you’ll look really stupid when I win!
I have to agree with Michael against Chris Clarke that I don’t see any basis for the assertion that the post-1992 Republican strategy was to “find out what the disaffected [Perot voters] wanted that the GOP failed to offer, and offer it.” If the Republicans became the party of deficit reduction and protectionism, they have certainly kept it well hidden. (Although on only one of Perot’s two key issues, Michael is right that there’s a better case that Clinton co-opted Perot voters.)
In addition, I think it’s worth nothing that the claim that Perot cost Bush the 1992 election is really not even “arguable.” Perot’s support was much more cross-cutting than Nader’s, and the only state polling data indicates may have flipped to Bush in Perot’s absence was Ohio — which would have left Clinton with a 150 electoral vote margin. There’s no serious empirical basis for the assertion that Perot plyed a decisive role in the 1992 campaign.
…In comments, Rick Perlstein points us to this book, which he says supports Chris’s claims. I admit to being skeptical about the first claim — I really find it hard to believe that Perot swung well over 100 electoral votes, but maybe they have data I haven’t seen — but it is certainly plausible that the GOP was thinking about these voters when crafting the Contract On America. (Of course, there’s also little evidence that the COA had a substantial impact on the election, but at least narrowly Chris’ point was just about what the GOP was trying to do. And evidently it also doesn’t follow that chasing 17% of the electorate isn’t more potentially profitable than chasing 3% of the electorate.) Anyway, I’ll check it out.
Nicole Belle notes that a large number of Democratic Senators haven’t co-sponsored the Habeas Corpus Restoration Act; this doesn’t mean that they will oppose it, of course, but it would be nice to see a more robust list.
Speaking of which, Bean notes below that “because of a recent (1996) law ‘intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it.’” I’m inclined to think that the AEDPA is the worst legislation Clinton signed into law during his tenure, even worse than DOMA (although both are obviously horrible.)
On August 15, 1769, nineteen year old Maria Letizia Bonaparte gave birth to her fourth child. The first two had died before the age of one year, but the third, Joseph, survived, and would eventually become King of both Naples and Spain. Maria’s husband, Carlo Bonaparte, was a minor official of somewhat distinguished Corsican lineage. His fortunes had changed for the better when he decided to support the transfer of Corsica from Genovese to French hands. Carlo and Marie would have nine more children, six of whom would survive, and two more of whom would reign as kings of European countries.
Napoleon Bonaparte, the fourth son, was admitted to the Ecole Royale Militaire in Paris, where he studied artillery and completed the two year degree in one year. Abetted by the chaos of the Revolution, Napoleon Bonaparte swiftly rose through the ranks, becoming a Brigadier General in 1794 at the age of 25. He soon became the foremost military hero of the Revolution, displaying an almost preternatural command of tactics and operations. In 1799, following a failed military expedition in Egypt, he participated in a coup d’etat that resulted in his rise to First Consul, the most important political position in France. In December 1804, with the blessing of the Pope, Napoleon Bonaparte had himself declared Emperor Napoleon I of the French.
The Emperor’s military success would continue for some time, including such stunning victories as Austerlitz (1805) and Jena (1806). Nelson’s destruction of the combined French and Spanish fleets at Trafalgar, however, helped constrain the ambitions of the Emperor. Eventually the Emperor over-reached himself, both in deposing the Bourbon monarch of Spain and in invading Russia. The invasion of Spain resulted in a long and brutal insurgency that, aided by the British, helped sap French strength. The invasion of Russia resulted in the loss of most of the Grand Army. All of conquered Europe rose against Napoleon, and at the end of March 1814, with his enemies closing in, Napoloeon I abdicated in favor of his three year old son, who held the title King of Rome at the time. Napoleon I had previously installed his brother Louis as King of Holland, and Jerome as King of Westphalia. The Allies rejected the abdication, forcing Napoleon I to abdicate fully and accept exile for both himself and his son. Napoleon’s escape a year later returned him briefly to the throne before his final defeat at the hands of Blucher and the Duke of Wellington at Waterloo. Exiled again, Napoleon I would die in 1821. His son, under house arrest in Austria, died in 1832 at age 21.
The Emperor’s brother, Louis, fathered a son in Paris in 1808. The young Louis Napoleon grew up in Switzerland and Germany, and served for a while as a resistance fighter against Austrian influence in northern Italy. The young Louis-Napoleon took leadership of the Bonaparte family after the death of Napoleon II. A failed coup in 1836 led to another period of exile, until Louis-Napoleon returned to France following the disturbances of 1848. Shortly thereafter, Louis-Napoleon was elected President of the Second French Republic. In late 1851 he seized dictatorial power, and in 1852, upon the 47th anniversary of Napoleon I crowning as Emperor, became Emperor of the French.
Napoleon III undertook a less expansionist policy in Europe than his uncle, but made up for that with initiatives in Africa, the Americas, and Asia. He helped put Maximilian I on the throne of Mexico, only later to see the Austrian executed by his ungrateful subjects. Napoleon III also helped builder a kinder, gentler, and more easily repressed Paris. In 1870 Napoleon III entered a trap laid by Otto Von Bismarck that resulted in the Franco-Prussian War. France’s quick and utter defeat led to Napoleon III’s abdication and exile in Great Britain. Napoleon III’s son died nine years later while fighting with the British Army against the Zulu in South Africa.
Had things gone differently at Sedan, Napoleon III might have escaped deposition, either for himself or for his son. The political meaning of a having a Bonaparte as constitutional monarch would differ in important respects from having a Bourbon on the throne. Due to the close relationship between the Bonapartes and the Revolution, a Bonaparte constitional monarch might not have had such negative effects as a Bourbon on the Dreyfus Affair or on the formation of Vichy.
Like other French royals, the Bonapartes were exiled from France. Napoleon VI attempted to volunteer for the French Army in 1940, and ended up serving in the French Foreign Legion before being captured by Germans while seeking Charles De Gaulle. When Napoleon VI died, he designated his grandson, Jean-Christophe Napoleon, as head of House Bonaparte. However, Napoleon VI’s son, Charles Napoleon, also claims to be the head of House Bonaparte. Both of the claimants have assured followers that there is no conflict. Apparently, an obscure Polish group wants to elect Jean-Christophe King of Poland. Prospects for a return to the throne of Naples, Spain, Holland, Westphalia, Poland, or France seem grim. Several of those countries no longer exist, others have abolished the monarchy, and still others prefer domestic claimants.
Trivia: What deposed monarch was arrested while backpacking incognito in his home country in 1967?
Saw the Police in Louisville last night. They were remarkably impressive. No Youtube highlights available from last night’s show, but the difference between the Police and some other “reunion” bands was profound; Summers, Sting, and Copeland were the only musicians on stage, they played quite a bit with the song arrangements, Summers was creative with the guitar, and they all looked like they were having fun. The mixing was also the best I’ve ever heard at a show of that size (Churchill Downs was full).
(Lots of) money well spent.
Sometimes I am appalled at the roadblocks that courts set up in the way of justice. Ironic, isn’t it?
The NY Times has the story today of Troy A. Davis, a 38-year-old man who has been on Georgia’s death row for 17 years. Mr. Davis was convicted of shooting a police officer who had come to break up a scuffle outside an Atlanta nightclub. There was no physical evidence tying him to the shooting. He admits to being at the scene but claims that he turned and ran as soon as someone threatened to shoot. At his trial, prosecutors, according to the Times, “relied heavily on the testimony of nine eyewitnesses who took the stand against Mr. Davis.” But in the years since his trial, seven of the nine witnesses have recanted or changed their stories, admitting that they were (again, per the Times) “harassed and pressed by investigators to lie under oath.”
Mr. Davis has exhausted his appeals. The Supreme Court last week refused to hear his case. And because of a recent (1996) law “intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it.” Why streamlining the path to death is a good idea totally escapes me. But beyond that, the existence of a law barring evidence that could exonerate a man less than one week from his execution seems both barbaric and blindingly stupid. Sure, in the absence of such a law, some people who are guilty of the crimes for which they were convicted would abuse the system and seek to submit unimportant evidence up to the last minute. But to me this seems a small price in efficiency to pay in order to ensure we don’t put innocent people to death. (As you may have read before, I don’t believe in capital punishment to begin with. But within the framework we now have, this law seems particularly cruel.)
Yet Mr. Davis remains on death row, and his death warrant (pdf) has been signed. The only way he will escape execution (to be carried out between July 17 and July 25) is if the Goergia Board of Pardons and Paroles grants clemency. Which – predictably – seems highly unlikely, particularly given that the boar has commuted only 8 sentences since 1973, the last more than three years ago. And this in a state that has less concern than most states about the possibility of executing the innocent: Georgia is one of only two states that does not guarantee that condemned prisoners will have legal representation after they have exhausted direct appeals (e.g. for clemency hearings, etc.).
At root, whether or not Mr. Davis is innocent (which there is ample evidence to suggest he is, including the fact that one of the people to testify against him is the person others have fingered as the shooter), is not important. The fact that our justice system would set any roadblocks in the way of truth-seeking, particularly in the context of capital punishment, is just beyond me. Streamlining should not come at this cost.