Adam Serwer

Reporter

Adam Serwer is a reporter at Mother Jones. Formerly a staff writer at the American Prospect, he has written for the Washington Post, the Root, the Village Voice, and the New York Daily News.

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Chief Justice Roberts' Long War Against the Voting Rights Act

Roberts has been a critic of the Voting Rights Act for 30 years. Now he will help decide whether the law's most important section lives or dies.

—By Adam Serwer

| Wed Feb. 27, 2013 4:01 AM PST

Then-President George W. Bush nominates John Roberts as chief justice on September 5, 2005.

When he was in his late 20s, John Roberts was a foot soldier in the Reagan administration's crusade against the Voting Rights Act. Now, as chief justice of the Supreme Court, he will help determine whether a key part of the law survives a constitutional challenge.

Memos that Roberts wrote as a lawyer in President Reagan's Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts' anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he'll get another chance to gut the law. Roberts' history suggests a crucial part of the VRA may not survive the rematch.

At issue in Shelby County is whether a major portion of the Voting Rights Act, called Section 5, is constitutional. Section 5 compels jurisdictions with a history of discrimination, mostly in the South, to ask the Justice Department for permission—preclearance, in legalese—before making any changes to election laws. Shelby County, Alabama, is arguing that Section 5 is an extreme measure that is no longer justified because racism is no longer the problem it once was. If Section 5 is overturned, voting rights groups say, the federal government's ability to ensure Americans are not denied the right to vote on the basis of race—at a time when race has been used as a proxy for party identification—will be severely weakened.

Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an "assessment" of the law. "I am sensitive to the controversy which has attached itself to some of the Act's provisions, in particular those provisions which impose burdens unequally upon different parts of the nation," Reagan wrote. "But I am sensitive also to the fact that the spirit of the Act marks this nation's commitment to full equality for all Americans, regardless of race, color, or national origin." Reagan didn't go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.

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Rights Groups to GOP: Stop Watering Down the Violence Against Women Act

—By Adam Serwer

| Mon Feb. 25, 2013 10:52 AM PST

House Majority Leader Eric Cantor at the Values Voters Summit in 2011

When House Republicans released their version of the Violence Against Women Act late on Friday, advocacy groups for victims of domestic violence were unanimous: They hate the Republicans' plan.

"There are over 20 House Republicans who have made public statements in support of a bipartisan VAWA that protects all victims. This is not that bill," said Kim Gandy, president of the National Network to End Domestic Violence said in a statement to reporters Friday evening. Monday, Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights, called the House GOP's version of the bill "nothing less than shameful."

For more than a year, Republicans have been blocking the reauthorization of the once bipartisan Violence Against Women Act, which was first passed in 1994. House Republicans had three main objections to the new VAWA drafted in the Democratic-controlled Senate: It increased the number of visas available to undocumented victims of domestic violence, it denied grant money to organizations that discriminate against LGBT victims of domestic violence, and it allowed Native American tribal courts to prosecute non-tribe members who are accused of abusing their Indian partners.

In order to address House Republicans' concerns, Senate Democrats removed the section of the draft VAWA that would have granted more visas to undocumented victims of domestic violence who cooperate with police against their abusers. Although law enforcement determines whether an individual has been helpful in an investigation and is therefore eligible for such a visa, Republicans charged that increasing the number of visas available would lead to fraud. This compromise version of the bill passed the Senate last week with 78 votes.

That wasn't good enough for House Republicans, however. As the Huffington Post's Jennifer Bendery reported Friday, the House GOP's version of the bill lacks the Senate language related to LGBT protections:

Specifically, the bill removes "sexual orientation" and "gender identity" from the list of underserved populations who face barriers to accessing victim services, thereby disqualifying LGBT victims from a related grant program. The bill also eliminates a requirement in the Senate bill that programs that receive funding under VAWA provide services regardless of a person's sexual orientation or gender identity. Finally, the bill excludes the LGBT community from the STOP program, the largest VAWA grant program, which gives funds to care providers who work with law enforcement officials to address domestic violence.

Sharon Stapel, executive director the New York Anti-Violence Project, released a statement saying that "Leaving LGBT survivors of violence behind is an unacceptable response to the real violence that LGBT people face every day." The Centers for Disease Control has found that same-sex couples experience domestic violence at the same rates as heterosexual couples.

As for allowing tribal courts to prosecute non-tribe members accused of abusing their Indian partners, Republicans altered—but did not remove—those sections of the bill. The changes the House GOP made to the law, however, make it harder to prosecute non-tribe members and harder to protect victims, according to the National Congress of American Indians. The Senate version of the bill requires that tribal courts meet the due process standards of the US Constitution. But under the Republican version of the bill, the tribal courts would also have to get the permission of the US attorney general before prosecuting a non-member. That's a heavy burden.

That's not the only change the GOP made that will affect American Indian victims of domestic violence. Tribal courts have long dealt with an epidemic of domestic violence by issuing civil protection orders (similar to a restraining order) against non-tribe members. Derrick Beetso, a staff attorney at NCAI, called these protection orders "the only recourse that Native women have against non-Indian abusers." The House GOP's version of VAWA makes it harder for tribal courts to issue these sorts of orders. Under the GOP's plan, even a restraining order-like ruling would now require tribal courts to get permission from the US attorney general. That's the same standard Republicans want tribal courts to meet in order to prosecute non-tribe members. "Now to exercise civil authority, they have to meet a criminal threshold," Beetso explains. NCAI opposes this new certification requirement.

The House is expected to consider the bill later this week.

Former Obama Officials Call for Oversight Over Targeted Killing

—By Adam Serwer

| Thu Feb. 21, 2013 9:11 AM PST

Former Defense Secretary Robert Gates meets with President Barack Obama in the Oval Office in 2009.

Two former top Obama administration officials have added their voices to those calling for some form of judicial oversight over the use of targeted killing.

In the New York Times, former Obama acting solicitor general Neal Katyal suggests that a panel of national security staffers could form "a 'national security court' housed within the executive branch itself" that would evaluate targeting decisions, which "would later be given to the Congressional intelligence committees for review."

Among Katyal's key points is that the Foreign Intelligence Surveillance Court, the secret court that approves surveillance on suspected foreign agents, often cited as a model for a potential targeted killing court, rarely refuses the government's requests. "[T]he odds of getting a request rejected, around 1 in 3,000, approximately the same as those of being struck by lightning in one's lifetime," Katyal writes. That of course, hasn't stopped presidents from doing end-runs around it.

Katyal isn't the only Obama official warming to the idea of a targeted killing court. Former Obama defense secretary Robert Gates said during a February 10 interview on CNN (flagged by Jack Goldsmith at Lawfare) that he believes more oversight of the killing of Americans may be warranted. "A panel of three judges or one judge or some—something that would give the American people confidence that there was, in fact, a compelling case to be—to launch an attack against an American citizen...is something worth giving serious consideration to," Gates told CNN.

Americans, however, make up a tiny percentage of the targeted killing program's targets. Senator Lindsey Graham (R-S.C.) reportedly told an audience in his home state Wednesday that the number of casualties from drone strikes was 4,700, far higher than previous estimates collected by the Council on Foreign Relations Micah Zenko, which pegged drone casualties at around 3,500. Of those thousands of casualties, just four are confirmed to be Americans: Terror suspects Kamal Derwish, Samir Khan, and Anwar al-Awlaki, as well as al-Awlaki's teenage son Abdulrahman, who was never accused of a crime. If some kind of adversarial panel, internal to the executive branch or otherwise, were only to evaluate whether Americans should be placed on the kill list, it wouldn't be very busy.

The American Civil Liberties Union, for its part, hates the secret court idea, which the ACLU argues may be "intended to limit the executive branch's claimed killing authority, but threatens instead to legitimize it."

Obama's Immigration Plan Is Far Harsher Than Reagan's

—By Adam Serwer

| Wed Feb. 20, 2013 7:29 AM PST

Draft immigration legislation being hammered out by the White House was leaked to USA Today over the weekend, and the paper had no trouble finding Republicans who balked at the president's plan. Sen. Marco Rubio (R-Fla.), one of the members of the bipartisan "Gang of Eight" who recently cooperated on a proposal for comprehensive immigration reform, called the White House draft "dead on arrival."

Opponents of immigration reform however, see the exchange as theater—"the point of leaking the bill is to enable Rubio to say that his amnesty plan is waaay different from the dastardly Obama plan," wrote the Center for Immigration Studies' Mark Krikorian at National Review. As a policy matter, Krikorian isn't entirely wrong: Rubio's hometown paper, the Miami Herald, also got ahold of the White House's drafts and concluded that they "closely resemble many of the reforms advanced in 2011 by Obama and, more recently, by Republican Florida Sen. Marco Rubio." (If you've been reading Mother Jones, that's hardly surprising.)

What may be surprising however, is that Obama's bill sets out a very long road to citizenship for undocumented immigrants. As Suzy Khimm writes at the Washington Post, under Obama's proposal, those undocumented immigrants who are eligible for legalization would likely have to wait around 13 years for full citizenship—eight years of temporary legal status before acquiring a green card, then, as is standard under US law, about another five for citizenship. (If a backlog of existing visa applications is cleared before that initial eight years, the total wait could be shorter.) Lynn Tramonte, deputy director of the pro-reform group America's Voice, tells Khimm that Obama's proposal would "delay citizenship another generation."

Compare that with the Immigration Control and Reform Act of 1986 that was signed by President Ronald Reagan, which allowed undocumented immigrants to apply for green cards after a temporary legal status of just 18 months. Add in the standard five years green-card holders have to wait before seeking citizenship, and under the bill Reagan signed the path to citizenship was half as long as Obama's would be.

So if you're looking for an indication of where America's immigration debate stands in 2013, note that Obama's liberal proposal would be significantly harsher than the law put in place by the patron saint of American conservatism more than 25 years ago.

Here's Why Obama Won't Say Whether He Can Kill You With a Drone: Because He Probably Can

—By Adam Serwer

| Fri Feb. 15, 2013 2:38 PM PST

During a Google+ "Fireside Hangout" Thursday evening, President Barack Obama was asked if he believed he has the authority to authorize a drone strike against an American citizen on US soil.

He didn't exactly answer the question.

The Council on Foreign Relations' Micah Zenko transcribed the whole exchange. Lee Doren, a conservative activist, asked the question; here's Obama's answer:

First of all, I think, there’s never been a drone used on an American citizen on American soil. And, you know, we respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside the United States. The rules outside the United States are going to be different then the rules inside the United States. In part because our capacity to, for example, to capture a terrorist inside the United States are very different then in the foothills or mountains of Afghanistan or Pakistan.

But what I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we are doing the right thing. I am the head of the executive branch. And what we've done so far is to try to work with Congress on oversight issues. But part of what I am going to have to work with congress on is to make sure that whatever it is we’re providing congress, that we have mechanisms to also make sure that the public understands what’s going on, what the constraints are, what the legal parameters are. And that is something that I take very seriously. I am not someone who believes that the president has the authority to do whatever he wants, or whatever she wants, whenever they want, just under the guise of counterterrorism. There have to be legal checks and balances on it.

Doren isn't the only one who wants an answer to this question. Senator Rand Paul (R-Ky.) has placed a hold on John Brennan, Obama's nominee for CIA director, "until [Brennan] answers the question of whether or not the President can kill American citizens through the drone strike program on U.S. soil." Senator Dianne Feinstein (D-Calif.) posed that exact question to Brennan in a written questionnaire, but his answer was as opaque as Obama's. "This Administration has not carried out drone strikes inside the United States and has no intention of doing so," Brennan wrote.

So why didn't Obama just say, "no, the president cannot deploy drone strikes against US citizens on American soil"? Because the answer is probably "yes." That may not be as apocalyptically sinister as it sounds.

"Certainly, we routinely 'targeted' U.S. citizens during the Civil War," says Steve Vladeck, a law professor at American University's Washington College of Law. "Even if the targeting was with imprecise 19th-century artillery as opposed to 21st-century [unmanned arial vehicles]." If he had the technology, President Abraham Lincoln would most likely have been within his authority to send a drone to vaporize Confederate General Robert E. Lee.

Drone strikes in the modern context, however, aren't being used against uniformed commanders of a traditional military force. Instead, we're talking about strikes that target individuals suspected of being part of terrorist organizations where "membership" is an inherently more nebulous concept.

There are two government agencies known to conduct drone strikes, the CIA and the Department of Defense. CIA involvement in a domestic drone strike is probably off-limits, says Paul Pillar, a former CIA official who is now a professor at Georgetown University. The idea is really far-fetched anyway, Pillar argues. "I expect that if the CIA were to do anything like that within the U.S. it probably would violate some of the legal restrictions that are placed on all of the agency's activities as far as inside-U.S. operations are concerned," Pillar wrote in an email to Mother Jones. "Nothing like this is ever going to arise as far as drone strikes are concerned, so I don't see it as a live issue."

Since the CIA is probably out, that leaves the military. Congress has long held that the president has the authority to use the military domestically in some circumstances. The Posse Comitatus Act, passed after Reconstruction to limit the use of military force on US soil, states that the military can be used to enforce the law "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." The last time this happened was 1992 when, citing the Insurrection Act, President George H.W. Bush called out the National Guard to suppress the Los Angeles riots in the aftermath of the Rodney King verdict.

According to US law, Congress can authorize the use of the military inside the US. The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as "express authorization" to carry out a targeted killing on US soil. The Obama administration stated in its white paper explaining its legal authority to kill US citizens abroad that capturing a suspected terrorist should be "infeasible" before a strike is authorized. But "the government's going to have a devil of a time proving that capture is infeasible for any individual found within the territorial United States," Vladeck says. And there's no reason to believe that local or state authorities, or if necessary the FBI, wouldn't be left to handle a situation involving suspected terrorists. (Local police dropped a bomb during an armed standoff with the radical group MOVE in Philadelphia in 1985, proving that civilian authorities can be just as lethal as the military.)

The law says military force can sometimes be used against people on American soil, such as if it were needed to fight an armed domestic insurgency. But we still don't know how broad the Obama administration thinks that authority is. Less than a week before President George W. Bush left office, the Justice Department withdrew a series of memos written by torture memo author John Yoo that envisioned near-dictatorial authority for the president, including the authority to deploy military force against terrorism suspects inside the US. Yoo had basically given Bush the executive branch equivalent of the Konami Code.

The Bush Justice Department argued that Yoo's theories should no longer "be treated as authoritative for any purpose." The question is whether the Obama administration has envisioned similar authority for itself. The answer to that question lies in the classified documents explaining the Obama administration's legal rationale for the targeted killing program—documents that the Obama administration has so far refused to fully disclose to Congress, let alone release to the public.