dubya's totally politicized Justice dept gets kicked in its idealogical teeth

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January 17, 2006
Supreme Court Upholds Oregon Assisted Suicide Law

By DAVID STOUT
WASHINGTON, Jan. 17 - The Supreme Court upheld Oregon's assisted-suicide law today, declaring that the Bush administration had exceeded its authority in trying to undo the statute by punishing doctors who help people end their lives.

In a 6-to-3 decision, which would apply to other states if their people chose to follow Oregon's lead, the court held that former Attorney General John Ashcroft went well beyond his authority and expertise when he ruled in 2001 that doctors would lose their federal prescription privileges if they prescribed lethal doses of medications for patients.

Today's ruling allows the state of Oregon to continue to follow the practice of the Netherlands, which in 2002 became the first country to legalize euthanasia and physician-assisted suicide in limited cir stances. It could also portend agonizing debates elsewhere in the United States, as medicine advances and people continue to wrestle with questions of life and death.

Justice Anthony M. Kennedy, writing for the majority today, acknowledged that the long-running battle over the Oregon law is part of a "political and moral debate." But the issue for the court, he noted, was a more technical, down-to-earth one: Did the attorney general go beyond his powers under the Controlled Substances Act of 1970?

Clearly, he did, Justice Kennedy wrote, in an opinion joined by Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The Controlled Substances Act "gives the attorney general limited powers, to be exercised in specific ways," the court ruled.

While the attorney general has authority to combat drug abuse, his limited powers under the law do not include the ability to declare illegitimate "a medical standard for care and treatment of patients that is specifically authorized under state law," the majority held, in emphasizing that the federal government cannot simply override state law on medical issues.

In deferring to the will of Oregon lawmakers and voters, the high court majority said Congress had explicitly envisioned a role for the states in regulating controlled substances when it enacted the 1970 law. Nothing in the act allows the attorney general to interpret prescriptions for assisted suicide as "drug abuse," Justice Kennedy wrote.

Moreover, the majority concluded, the language of the 1970 law, in calling for the attorney general to defer to the secretary of Health, Education and Welfare on some medical issues, signals a clear unwillingness to allow medical judgments to be made by an executive official who lacks medical expertise. And the former attorney general's assertion that he was making a legal decision, not a medical one, does not hold up under scrutiny, the justices said.

"All would agree, we should think, that the statutory phrase 'legitimate medical purpose' is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense," the majority said.

Furthermore, the six justices reasoned, if the attorney general's argument were sustained, it would allow him to decide "whether any particular drug may be used for any particular purpose," a situation clearly beyond his office's scope and competence.

Justice Antonin Scalia, in a sharp dissent, asserted that the attorney general did indeed have the authority to issue his 2001 ruling, regardless of the majority's reading of events. "If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death," Justice Scalia wrote.

Justice Scalia, citing papers filed on behalf of the federal government, wrote that "virtually every medical authority from Hippocrates to the current American Medical Association confirms that assisting suicide has seldom or never been viewed as a form of 'prevention, cure, or alleviation of disease.' " The entire legitimacy of physician-assisted suicide "ultimately rests, not on 'science' or 'medicine,' but on a naked value judgment," he wrote.

Also dissenting were Chief Justice John G. Roberts Jr. and Justice Clarence Thomas. Chief Justice Roberts, whose conservative judicial philosophy was widely discussed during his confirmation hearings last year, had indicated skepticism about the arguments advanced by the State of Oregon when the case was argued in October.

( yes, of course. The right wing idealogues dissent. Rest assured that when this court is packed with right-wing idealogues, they will be allowing the feds into your beds, your hospitals, your morals, etc... )

The White House said it was disappointed with the ruling.

"The president remains fully committed to building a culture of life, a culture of life that is built on valuing life at all stages," President Bush's chief spokesman, Scott McClellan, said at a news briefing.

Oregon voters approved the state's Death With Dignity Act twice, and it took effect in 1997. It sets out specific, detailed procedures for patients who want to end their lives, and for doctors who want to help them. Among other requirements, a patient must have a life expectancy of less than six months and must be mentally competent. The patient must also be advised of all alternatives, like ho e care and pain management. And the doctor who prescribes the drugs may not administer them.

As of the last reporting period on the law, in 2004, 326 patients had received prescriptions for medications to end their lives, and 208 had actually used them.

Today's ruling upheld one by the United States Court of Appeals for the Ninth Circuit, which had found that Congress had not given the attorney general the authority to punish doctors who follow state law in prescribing federally regulated mdications. Mr. Ashcroft had also worked to undo the Oregon law while he was a senator from Missouri. He asked President Bill Clinton's attorney general, Janet Reno, to void the Oregon law, but she declined, saying that she lacked the authority.

The Bush administration continued Mr. Ashcroft's campaign after he left the Justice Department, with his successor, Alberto R. Gonzales, being opposed by doctors, pharmacists and patients in Oregon.

Senator Ron Wyden, an Oregon Democrat who had joined with other members of the state's Congressional delegation in opposing the administration's position, called today's ruling "a significant victory for Oregon's voters."

"The court's decision has stopped, for now, the administration's attempts to wrest control of decisions righfully left to the states and individuals," Mr. Wyden said, vowing to fight any attempt in Congress to overturn the ruling.

The Oregon state solicitor, Mary Williams, told The Associated Press, "For Oregon's physicians and pharmacists, as well as patients and their families, today's ruling confirms that Oregon's law is valid and that they can act under it without fear of federal sanctions." But Jay Sekulow, chief counsel of the American Center for Law and Justices, had an opposite reaction. "This is a disappointing decision that is likely to result in a troubling movement by states to pass their own assisted-suicide laws," he told The A.P.

• Copyright 2006The New York Times Company

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dubya's legal team continues to ignore or be ignorant of the laws governing the executive branch.

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Congressional Agency Questions Legality of Wiretaps

By Dan Eggen
Washington Post Staff Writer
Thursday, January 19, 2006; A05

The Bush administration appears to have violated the National Security Act by limiting its briefings about a warrantless domestic eavesdropping program to congressional leaders, according to a memo from Congress's research arm released yesterday.

The Congressional Research Service opinion said that the amended 1947 law requires President Bush to keep all members of the House and Senate intelligence committees "fully and currently informed" of such intelligence activities as the domestic surveillance effort.

The memo from national security specialist Alfred ming is the second report this month from CRS to question the legality of aspects of Bush's domestic spying program. A Jan. 6 report concluded that the administration's justifications for the program conflicted with current law.

Yesterday's analysis was requested by Rep. Jane Harman (Calif.), the ranking Democrat on the House intelligence committee, who wrote in a letter to Bush earlier this month that limiting information about the eavesdropping program violated the law and provided for poor oversight.

The White House has said it informed congressional leaders about the NSA program in more than a dozen briefings, but has refused to provide further details. At a minimum, the briefings included the chairmen of the House and Senate intelligence oversight committees and the two ranking Democrats, known collectively as the "Gang of Four," according to various sources.

"We believe that Congress was appropriately briefed," White House spokeswoman Dana Perino said in a statement last night.

Bush has publicly acknowledged issuing an order after the Sept. 11, 2001, attacks that allowed the National Security Agency to intercept telephone and e-mail exchanges between the United States and overseas without court authorization. The cases were limited to people suspected of al Qaeda ties, Bush and his aides said.

ming's analysis found that both intelligence committees should have been briefed because the program involved intelligence collection activities.

The only exception in the law applies to covert actions, ming found, and those programs must be reported to the "Gang of Eight," which includes House and Senate leaders in addition to heads of the intelligence panels. The administration can also withhold some operational details in rare cir stances, but that does not apply to the existence of entire programs, he wrote.

Unless the White House contends the program is a covert action, the memo said, "limiting congressional notification of the NSA program to the Gang of Eight . . . would appear to be inconsistent with the law."

Also yesterday, the Electronic Privacy Information Center said it would file a Freedom of Information Act lawsuit today demanding information about the NSA spying. The American Civil Liberties Union and the Center for Cons utional Rights filed separate lawsuits Tuesday asserting that Bush exceeded his authority and violated Fourth Amendment guarantees in authorizing the NSA surveillance.

© 2006 The Washington Post Company