Wednesday, May 2, 2007

Fontana on Comparing Prosecutors' Independence Worldwide

Posted by Alan Childress
My GW colleague David Fontana has published this editorial in the National Law Journal on the U.S.Professordavidfontana_2006_86x86 Attorneys controversy and how the U.S. versions of politicized prosecutors, beyond this controversy, make other countries scratch their heads.   It is called "APPOINTING PROSECUTORS: Make it less political."  Examples from the U.S. and abroad, he argues, point to the balance we need to find between independence and accountability.

UPDATE:  David is publishing an article tomorrow in The New Republic online, and it is called, "Reevaluating Hamdan v. Rumsfeld: Pyrrhic Victory." More below the fold.

David writes:

[I]t seems that Hamdan has not been the corrective it appeared to be at first blush. Last week, the Bush administration announced that it is planning to limit even further the ability of Guantánamo detainees to interact with their lawyers--precisely the types of limitations on rights that many thought Hamdan had started us down the path to avoiding. In reality, Hamdan is looking less like a grand promise to liberals and more like a grand disappointment.

The reason is that Hamdan was, fundamentally, a decision about the separation of powers--about what the executive branch can and cannot do without congressional approval. The Court decided that the military commissions the president had convened were improper not because they violated the liberties enjoyed by Hamdan or other individuals, but because the Bush administration had not first asked Congress for permission to convene them. Since September 11, the Court has largely avoided taking a stand on issues of individual rights, and Hamdan, in which rights concerns were secondary anyway, represented no change from this pattern.

As a result, Hamdan left the door open for the erosion of those rights. . . .

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