The "Outrageous" Top Ten: From (Slate/Dahlia Lithwick)
Definitely good stuff here (there?). Hat tip to Howard Bashman of the award winning How Appealing. (Also need to mention that the guys at Volokh Conspiracy are talking about this: Boumediene v. Bush (Circuit Judge Judith W. Rogers dissented, in a three-page opinion. She argued that the former judges' brief satisfied federal rules of appellate procedure dealing with unopposed motions to file amicus briefs. She concluded that the ex-judges had met the requirement of having an interest in the case by saying that they were retired federal judges who have "dedicated their professional careers to our judicial system," and that the life-long detention of individuals based on credible evidence that they were tortured "challenges the integrity" of the judicial system. The former judges' brief was filed on Nov. 1 by seven retired federal judges, arguing that the new Military Commissions Act is unconstitutional because it would allow the military to use evidence obtained by torture or "inhumane treatment" in detention proceedings, and the courts would not be able to review the legality of such evidence. An earlier post discussing the brief, with a link to the brief itself, can be found here (SCOTUSblog))
Back to the Outrageous Ten
10. Attempt to Get Death Penalty for Zacarias Moussaoui
Long after it was clear the hapless Frenchman was neither the "20th hijacker" nor a key plotter in the attacks of 9/11, the government pressed to execute him as a "conspirator" in those attacks. Moussaoui's alleged participation? By failing to confess to what he may have known about the plot, which may have led the government to disrupt it, Moussaoui directly caused the deaths of thousands of people. This massive overreading of the federal conspiracy laws would be laughable were the stakes not so high. Thankfully, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.
9. Guantanamo Bay
It takes a licking but it keeps on ticking. After the Supreme Court struck down the military tribunals planned to try hundreds of detainees moldering on the base, and after the president agreed that it might be a good idea to close it down, the worst public relations fiasco since the Japanese internment camps lives on. Prisoners once deemed "among the most dangerous, best-trained, vicious killers on the face of the earth" are either quietly released (and usually set free) or still awaiting trial. The lucky 75 to be tried there will be cheered to hear that the Pentagon has just unveiled plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.
8. Slagging the Media
Whether the Bush administration is reclassifying previously declassified documents, sidestepping the FOIA, threatening journalists for leaks on dubious legal grounds, or, most recently, using its subpoena power to try to wring secret documents from the ACLU, the administration has continued its "secrets at any price" campaign. Is this a constitutional crisis? Probably not. Annoying as hell? Definitely.