It's that time of year when I note the people who have done the most to advance the cause of civil liberties during this last turn around the sun, with the annual "Freeby" awards.
Mostly it has been a shabby civil liberties year, with continued disappointments on the Guantanamo front. The latest is that our constitutional-scholar president is preparing an executive order to create a periodic review procedure for the 48 detainees the administration intends to hold without trial — some of whom have already been in Guantanamo for up to eight years. By turning Bush-era indefinite detentions into institutionalized policy, President Barack Obama is laying the foundation for future presidents to use preventative detention as a tool.
But some bright civil liberties spots did shine through, most brilliantly those having to do with establishing legal equality for gays and lesbians. Two remarkable wins each deserve Freebys: The same-sex marriage ruling by U.S. District Judge Vaughn Walker, and the congressional repeal of "don't ask, don't tell," the law barring gays and lesbians from openly serving in the military.
How the lame duck Congress kicked into gear and swept away "don't ask, don't tell" is almost as remarkable as the feat itself. After a devastating November, it was exciting to see the Democrats get a bit of groove back and spin the possible from the impossible — since they're usually so good at doing the reverse.
After tucking the repeal into a defense authorization bill that, at the time, was going nowhere, Democrats pivoted, seeking passage of a stand-alone repeal bill. With time running out, the House quickly passed it, while in the Senate, Sen. Susan Collins of Maine, one of the last remaining moderate Republicans, worked with Democrats to usher the repeal past a Republican filibuster threat.
The season's Scrooge was played by a crotchety Sen. John McCain, who whined noisily about military readiness and virtually put his fingers in his ears as the nation's top military officials explained how a repeal would better serve the nation's defenses. The man's judgment seems to be deteriorating along with what's left of his legacy for decency.
Earlier in the year, Walker's exceptional ruling set the stage for an eventual decision by the U.S. Supreme Court over the constitutionality of excluding gays and lesbians from marriage. In what is sure to go down as the exemplar of air-tight decision-writing, Walker struck down California's Proposition 8, not giving an inch for the ban's supporters to cleave to on appeal.
The 136-page ruling laid out every possible government rationale for a ban on same-sex marriage and then exhaustively demolished each claim by reciting at length the expert testimony evinced at trial. In the end, Walker, a Republican appointee, found that Proposition 8 was grounded in an irrational fear of homosexuality, an illegitimate basis for law.
Substantial credit for this sweeping victory goes to the legal team of Ted Olson and David Boies. These high-powered lawyers had been opponents in the showdown over the 2000 election, with Olson, a Republican legal pooh-bah, representing Bush, and Boies on Team Gore. But they came together — hopefully — to make history. Olson's presence alone makes the suit less partisan, giving it a real shot at capturing the vote of Justice Anthony Kennedy, who is key to victory. An all-around Freeby-worthy effort.
Also, there was one glimmer of civil liberties light this year beyond gay rights. A jury's decision to convict Ahmed Ghailani of conspiracy in connection with the August 1998 bombings of United States embassies in Tanzania and Kenya, but acquit him of the other terror-related charges, demonstrates that our civilian courts are capable of delivering fair verdicts in terrorism cases. The judge's decision to exclude a prosecution witness' testimony because, by the government's own admission, it was obtained as a result of coercion, added to the trial's credibility. A Freeby is awarded to the judge and especially to the jury — average folks who did their job without bias.
That's it. I hope 2011 provides more copious opportunities for Freebys. After years of pummeling, our Constitution could use the break.