Law

Said The Red Queen

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by Gary Farber

First, we don't kill all the lawyers.  

Let's continue the examination of the lawfulness of the killings of American citizens Anwar al-Awlaki and Samir Khan I began in my post, Off With Their Heads!

(That various other non-citizens, including Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, and another several Yemenis, were killed is another debate, but they should not be forgotten, either.)

Consider the justifications presented for these killings:

#1: Did they commit "treason"?  Possibly so!  

Sticking point: the U.S. Constitution says very clearly:  

Section 3 - Treason 

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It's almost as if the drafters of the Constitution considered this!  

Our Constitution specifically defines "treason" and the only way someone can be convicted of it.  As You Know, Bob (everyone), the U.S. Constitution is superior to U.S. laws, which can't violate the Constitution.  So al-Awlaki and Khan can't have been put to death because they committed "treason."  

The President has taken an oath to uphold the Constitution.

#2: It was justified to kill them because of their propaganda and speech.  

Unfortunately for this argument, the Constitution also rules it out with the little-known, obscure, First Amendment freedom of speech. 

Let's move on to more serious arguments.

But first let's jump to the White House presenting its official response as press secretary Jay Carney explains, and is questioned by Jake Tapper (!) of ABC News: 


video platformvideo managementvideo solutionsvideo player
 

Some quotes: 

TAPPER: You said that al-Awlaki was “demonstrably and provably involved” in operations. Do you plan on demonstrating or proving –

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Off With Their Heads!

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by Gary Farber

I say we just kill all accused murderers from now on.

Think of the money saved, the deficit, and, of course, the children.

Now that we've established that the courts and Constitution don't matter, let's just jail all the accused criminals, too. Why lose sleep? They're murderers and criminals! The state says so. 

All Presidents need the power to assassinate people simply because they say so. What could go wrong? 

This matters not.

Amendment 5 – Trial and Punishment, Compensation for Takings.

Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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You Have The Right To Freeze And Be Utterly Silent

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by Gary Farber

The Fourth Amendment continues to be onion-peeled into nothingness.  KENTUCKY v. KING puts another nail in the coffin as police gain the right to kick in your door simply because they hear movement within your dwelling.

Obviously that's probable cause, because noise indicates a crime. 

Does that make sense to you?  It does to 8 out of 9 members of the Supreme Court.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined. GINSBURG, J., filed a dissenting opinion.

Here's the gist: 

[…] 

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. 

Right.  Let's get more detail.

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at night we ride through mansions of glory in suicide machines

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by fiddler

Sen. Kirsten Gillibrand (D-NY) is taking aim at the single biggest killer of teenagers — car crashes. For the second year she’s sponsoring a bill to require all states to make 18 the minimum age for an unrestricted driver’s license. At this point only a few states and DC keep teen drivers from unrestricted licenses until age 18; the others are divided between 16 and 17-1/2. States that let a driver have an unrestricted license at 18, according to the Governors Highway Safety Association, include Arkansas, Florida, Georgia, Maryland, Missouri, New Jersey and Virginia. Connecticut, Illinois, Massachusetts and Ohio requires drivers to be 18 to drive at night. The article above, from Congress.org, said 12 states plus DC, which means they’re including Pennsylvania. In Pennsylvania, when young drivers turns 18 their licenses automatically become unrestricted; otherwise, restrictions are removed after a year of driving without a crash or conviction if the driver has completed a driver’s education course.

There are good statistical, practical reasons for this change. ‘Motor Vehicle Traffic’ accounts for 39.98 percent of fatalities for people age 16-19, according to the National Center for Health Statistics.

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do as I say, not as I do

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by fiddler

(not an April Fool’s post, despite the date)

Richard A. Clarke, former counter-terrorism czar for both the Clinton and Bush administrations, had some strong words about the US Chamber of Commerce’s aborted plans for discrediting its critics, which included spying on families, using malware to steal information, faking documents to embarrass its liberal opponents, and creating and using ‘sock puppet’ personas to infiltrate their targets.*

Clarke said of the US Chamber’s plans to hack, impersonate, spy upon and steal from its perceived opponents:

“I think it’s a violation of 10USC. I think it’s a felony, and I think they should go to jail. You call them a large trade association, I call them a large political action group that took foreign money in the last election. But be that as it may, if you in the United States, if any American citizen anywhere in the world, because this is an extraterritorial law, so don’t think you can go to Bermuda and do it, if any American citizen anywhere in the world engages in unauthorized penetration, or identity theft, accessing a number through identity theft purposes, that’s a felony and if the Chamber of Commerce wants to try that, that’s fine with me because the FBI will be on their doorstep in a matter of hours.”

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Their urge to betray – and ours

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WRITTEN BY Thomas Nephew, of Newsrack, NOT BY Gary Farber

Until recently, Peter Benjamin was the chairman of the Washington, D.C. area Metro transit system's Board of Directors. A former mayor of Garrett Park, he brought an avuncular personality and long experience with Metro affairs to the table. While in correspondence with us about the bag search issue I've written about before, he dismissed some of our assertions about the program's drawbacks — for example, he didn't believe it would cause much decline in ridership. But he seemed to take seriously the civil liberties issues involved.

Still, sometimes I think if I had a dollar for every time I've heard or read "I'm a supporter of the ACLU, but…" I could afford the richer, more refined lifestyle I truly deserve.


 

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words "I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut," Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are "why we are the great country that we are" and personally believing that "bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights," Mr. Benjamin continued:

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till the landslide brings it down

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by fiddler

Following up on previous posts (here, here, here, here, and here):

HBGary Federal, Team Themis, Hunton & Williams and the US Chamber of Commerce:

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Self-Evident

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Guest post by Amezuki, not by Gary Farber

You all know me by a different pseudonym, and I'll reintroduce myself properly later.

But in the meantime, a word from our Founders:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The Declaration of Independence stands, in my mind, as one of the greatest political documents in history.

Like our Constitution, it stands on the shoulders of many other exalted works, and my opinion is not in any way intended to denigrate those works–but what makes it stand out in my mind is not just the role it had in the birth of our nation, but in the simple, unequivocal and straightforward statements of first principles it contains.

Foremost among these is the well-known passage I quoted above. Its evocative power was such that Martin Luther King, one of the most eloquent speakers and users of language our nation has known, had no need to embellish it further when quoting it, save to correctly note that it was a promise our country had yet to fully honor. "All men are created equal."

Think about that for a moment. All men. You will notice a distinct lack of footnotes, equivocation, qualifications or exceptions to the word "all".

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how do you like living in Omelas?

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by fiddler

Despite eastern Virginia’s steamy summers, the temperature can drop close to or below freezing at night in late fall, winter and spring. Concrete is not a good insulator against the chill in the ground, or in the air. And in a concrete cell in the brig at the Marine base in Quantico, VA, US Army Pfc. Bradley Manning is being forced to go without clothing for hours at a time, including sleeping at night and for inspections.

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Metro’s random bag searches (I)

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by Guest/incoming-front-pager Thomas Nephew

(I): Taborn's bombshell:

In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA — better known as "Metro" — and its police force announced a new random bag search policy:

…police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

The randomness of the program is implemented by choosing some secret number N for each site and date, and selecting every Nth person with a bag. As described, the policy allows people approaching a station to decide to refuse the screening — they just can't then bring their bags with them:

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided — security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for zero security in return.

Thanks in part to a good deal of mobilizing by opponents — including an online petition and an evening of nearly unanimous public opposition — WMATA's "Riders Advisory Council" (RAC), the institutional voice of Metro users, overwhelmingly passed a resolution in early January calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.

Be observed… be watched As welcome as the 15-1-1 RAC vote was on January 5th, the real news may have happened earlier in the same meeting.

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Protecting the odious

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by fiddler

The US Supreme Court issued a majority opinion today that the homophobic and hostile Westboro Baptist Church is covered by the First Amendment when its members picket outside funerals; this is based on the grounds that the substance of the protests could be considered commentary on national matters.

“As a nation we have chosen…to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Chief Justice John Roberts wrote for the court. “That choice requires that we shield Westboro from tort liability for its picketing in this case.”

The Westboro church believes that any misfortune America suffers is divine punishment for the nation’s failure to follow the sect’s doctrine, which condemns gays, Catholics, Jews and others. The tiny church, whose membership largely consists of the founder’s family, pickets military funerals to get attention for its message.

This majority opinion stretches the First Amendment until it squeaks at the edges, to get it to cover hate-mongering and homophobia because those attitudes are associated with a presumed theological critique of national affairs. Eight of the nine justices concurred in the majority opinion, though Justice Stephen Breyer wrote a separate opinion partially modifying his concurrence. Justice Samuel Alito dissented, in a separate opinion that pointed out relevant issues that had not been considered by the court.

Immunizing Westboro from tort action means that the plaintiff, Albert Snyder, cannot sue in civil court for damages related to Westboro’s picketing at the 2006 funeral of his son, Lance Cpl. Matthew Snyder. An earlier Pennsylvania court decision that slapped Westboro with a $10.9 million judgment for the Snyder funeral protest was overturned on appeal before the case arrived at the Supreme Court.

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Winning Wisconsin, Pigs & Hippies Together: This is OUR HOUSE!

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by Gary Farber

Don't tell me we can't win this.  Wisconsin Police Have Joined Protest Inside State Capitol.

From inside the Wisconsin State Capitol, Ryan Harvey reports:

“Hundreds of cops have just marched into the Wisconsin state capitol building to protest the anti-Union bill, to massive applause. They now join up to 600 people who are inside.”

Ryan reported on his Facebook page earlier today [Friday, Feb. 25 -gf]],:

“Police have just announced to the crowds inside the occupied State Capitol of Wisconsin: ‘We have been ordered by the legislature to kick you all out at 4:00 today. But we know what’s right from wrong. We will not be kicking anyone out, in fact, we will be sleeping here with you!’

Ryan Harvey's video from Friday:


 

 My quotes:

[…] This is not a budget issue! This is a CIVIL RIGHTS ISSUE!  […] Mr. Walker!  […] We know pretty well now who you work for!  [applause] Let me tell you who WE work for! [points to self and police emblem]  We work for all of these people!  [applause] We are not here, Mr. Walker, to do your bidding!  We are here to do their bidding!  […]  Mr. Walker, this not your House!  This is all of our House!  [camera pans 360°]

I want to give this officer a big fat kiss on the mouth.

Pictures from Ryan Harvey, February 25, Occupied Capitol Building, Madison, WI:

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The New Republican Congressional Revolutionary Volunteers Of America

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by Gary Farber

Congressman stops short of calling for Obama assassination. Georgia Congressman Paul Broun's Tuesday night’s town hall meeting:

The first question of the night (confirmed by Broun’s office) was “when is someone going to shoot Obama?”

Broun’s response, Athens Banner-Herald (Georgia):

The thing is, I know there’s a lot of frustration with this president. We’re going to have an election next year. Hopefully, we’ll elect somebody that’s going to be a conservative, limited-government president that will take a smaller, who will sign a bill to repeal and replace Obamacare. He then segued into Republicans’ budget proposal.

Today: Loughner indictment expected by March 9, trial in Sept.:

Dylan Smith, TucsonSentinel.com

Prosecutors said they will indict Jared Lee Loughner on more federal charges by March 9, a court order said Thursday. U.S. District Judge Larry Burns said in the order that he expects a trial to begin before Sept. 20. Loughner, 22, is the alleged gunman in the Jan. 8 shooting that authorities call an assassination attempt on U.S. Rep. Gabrielle Giffords.

[…] Six were killed and 13 wounded in the attack on a constituent meet-and-greet at a Northwest Side grocery store. Giffords remains in a Houston rehab facility, recovering from her wounds.

Georgia Congressman Paul Broun had best not hold town meetings on Obsidian Wings. Posting Rules:

[…] Calls for the assassination of any person will be subject to immediate banning. Exceptions are made for legitimate military targets in time of war, being put to death after being convicted of a capital crime, etc. — basically, the things that make a killing not 'assassination' to begin with. As before, this is not a prohibition on criticism, vituperation, and all those other good things; just a recognition that there's all the difference in the world between passionately disagreeing with someone and calling for that person's death.

We would ban someone from here for such a statement. But Republican Georgia Congressman Paul Broun lets it pass without a word and:

[…] Broun’s press secretary, Jessica Morris, confirmed that the question was indeed, who is going to shoot Obama? “Obviously, the question was inappropriate, so Congressman Broun moved on,” she said.

We wouldn't just move on, if we noticed that here.

But it's okay if you're merely a Republican Congressional Representative.

Move along. Nothing to see here.

In June, Greg Sargent wrote: Sharron Angle floated possibility of armed insurrection:

Here's another one that could be tough for Sharron Angle to explain away: In an interview in January, Angle appeared to float the possibility of armed insurrection if "this Congress keeps going the way it is."

I'm not kidding. In an interview she gave to a right-wing talk show host, Angle approvingly quoted Thomas Jefferson saying it's good for a country to have a revolution every 20 years — and said that if Congress keeps it up, people may find themselves resorting to "Second Amendment remedies."

What's more, the talk show host she spoke to tells me he doesn't have any doubt that she was floating the possibility of armed insurrection as a valid response if Congress continues along its current course.

Asked by the host, Lars Larson of Portland, Oregon, where she stands on Second Amendment issues, Angle replied:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it's good for a country to have a revolution every 20 years.

I hope that's not where we're going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I'll tell you the first thing we need to do is take Harry Reid out.

Larson says Angle was floating the possibility of armed insurrection if Congress keeps it up under Reid et al.

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Newton’s Third Law #4, the continuing story, with update

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by fiddler

(Previous Newton’s Third Law posts are here, here and here.)

Benjamin Spock de Vries says he is not Commander X, one of the ‘leaders’ of Anonymous whom Aaron Barr of HBGary supposedly found online. Apparently, Barr wrote several memos in which he connected Commander X’s identity to de Vries, all of which are included among the memos leaked by Anonymous. This mistaken identification led to an oddly amusing exchange, when Barr contacted him during the attack on HBGary by Anonymous:

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Scott Walker Reports To The Boss, David Koch

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by Gary Farber

Don't believe how it works?  Then listen for yourself.

Let's go with Adam Weinstein's take:

Is that really Scott Walker? [Update: Yep.] A New York-based alt-news editor says he got through to the embattled Wisconsin governor on the phone Tuesday by posing as right-wing financier David Koch…then had a far-ranging 20-minute conversation about the collective bargaining protests. According to the audio, Walker told him:

  • That statehouse GOPers were plotting to hold Democratic senators' pay until they returned to vote on the controversial union-busting bill.
  • That Walker was looking to nail Dems on ethics violations if they took meals or lodging from union supporters.
  • That he'd take "Koch" up on this offer: "[O]nce you crush these bastards I'll fly you out to Cali and really show you a good time."

Now check it out yourself:


 

The rest:

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what do you do when the grand jury wants your tweets? (Updated)

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by fiddler

What do an Icelandic parliamentarian, a US computer researcher and a Dutch businessman have in common? They’re challenging the US government’s right to get Twitter to disclose their private information under sealed court order.

A hearing on this took place Tuesday in a federal court in Alexandria, Virginia, but no decision was reached; the judge is to issue a written opinion later.

The Electronic Freedom Foundation and the ACLU are representing Birgitta Jonsdottir, a member of the Parliament of Iceland. Dutch entrepreneur and hacker Rop Gonggrijp, and U.S. computer programmer Jacob Appelbaum are represented by private law firms as well as local counsel in Virginia.

From the Washington Post article written before the hearing, which did not name the defendants:

The dispute cuts to the core of the question of whether WikiLeaks allies are part of a criminal conspiracy or a political discussion. It also challenges the Obama administration’s argument that it can demand to see computer data and read months’ worth of private messages, even if they have nothing to do with WikiLeaks.

The international implications haven’t been ignored:

Iceland’s foreign ministry last month summoned the US ambassador in Reykjavik to express “serious concern” about the bid to obtain personal information about Jonsdottir, the Icelandic MP.

Jonsdottir, an early WikiLeaks supporter who distanced herself from the site a few months ago, is an active promoter of freedom of information and a member of the Icelandic parliament’s foreign affairs committee.

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Newton’s Third Law #1, 2nd UPDATE , 5:30 p.m. EST

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by fiddler

Last Saturday, an article in the Financial Times featured Aaron Barr of cybersecurity firm HB Gary Federal, boasting that he had discovered the identities of key members of the hacking collective that calls itself Anonymous.

Any cybersecurity firm worth its salt should realize that this action would result in a reaction, and should create protocols and take precautions to avoid them.

Hmm. Apparently not.

In short order, Anonymous hacked them, printed “Fail” across Barr’s photo, wrote him a scathing letter to accompany it, and released a compilation of 40,000+ of the company’s files and memos to the public. Some of these concerned a presentation prepared for Bank of America last December on how the bank could protect itself against Wikileaks.

One of HB Gary Federal’s bright ideas? Target Salon columnist Glenn Greenwald, who is also a New York Times best-selling author and attorney. Why? On the grounds that because Greenwald wants to make sure Bradley Manning isn’t being mistreated and Manning is accused of leaking files to Anonymous, Greenwald therefore must be part of Anonymous.

Wrong.

 

 

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MAJ. Andrew Olmsted On Gays In The Military

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by Gary Farber.

Major Olmsted is no longer with us; he died a hero.

Doctor Science wrote a superb post in the last week of December on DADT and Rape Culture, which didn’t get remotely the attention it deserved, because, of course, it was just after Christmas, and before New Year’s, in America, according to the majority calendar.

Spirited debate did result in comments, and the debate, while tedious and understandably offensive to many, nonetheless had many comments I thought worthwhile.  Open debate is something we try to aim for at Obsidian Wings, though like all bloggers, we have our personal views and prejudices.

I’m extremely grateful to long time and valued commenter Mike Schilling, who has been writing smart stuff online at least since the Nineties on Usenet, for reminding us, and me in particular, of the late Major Andrew Olmsted’s, former co-blogger here on Obsidian Wings and elsewhere (see our upper right sidebar, please), first under his own name, and then under the pseudonym of “G’Kar,” from his beloved Babylon 5, which was one of the best serial space operas yet made for American television, words and views about gays in the military, written December 21, 2007 in a post entitled Military Musings.

Andy started off talking about the M4 carbine, and then moved onto this, which I’ll quote, because he isn’t here to do so himself:

[…] Now, on to other topics, like heterosexism in the military and the breaking of the Army. While I am sure that what OCSteve recalls as the situation extant in his unit when he served prior to Don’t Ask, Don’t Tell (DADT) may have been the case in his unit, I find it less plausible that a similar situation obtained across the entire military. As Jesurgislac points out, the military was discharging people vigorously for their sexuality throughout the 1980s; DADT may have made matters worse for gays and lesbians, but they were far from accepted before that policy arrived. I have nothing but contempt for a policy that permits convicted criminals to serve while asking people to leave simply because their sexuality or gender does not fit neatly into society’s binary system.

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So Gross And Notorious An Act Of Despotism

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by guest poster Gary Farber.

To bereave a man of life, or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole kingdom. But confinement of the person, by secretly hurrying him
to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of
arbitrary government. …

— 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765)

I am not a lawyer; I'm just a guy who has cared passionately about civil liberties and our Constitution all his life, and who has read a lot of court decisions.

I'm quoting Blackstone, above, from a specific court decision, in fact: Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. 

I'm quoting Justice Scalia quoting Blackstone, with whom Justice Stevens joined in dissenting. 

Which brings to yesterday's decision, Mohamed et al. v. Jeppesen Dataplan, Inc., by the Ninth Circuit Court of Appeals.

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No Escape

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By guest poster Gary Farber.

Prison rape jokes abound every time a heinous trial or crime is in the news. 

I don't need to repeat any: you've heard them.  Heh, heh, I'm not going to feel sorry for that mass murderer/rapist/con artist/thief, and what's coming to him.

Of course, few of us think we'll ever wind up in jail, let alone prison, and most of us won't. 

Prison rape is what happens to The Other. 

Which is where the laughing and the righteous vengeance arise: it's not so funny if you imagine yourself, or one of your loved ones, trapped in an injustice system, unjustly thrust into captivity, and subject to brutal sexual and violent abuse.

Last week, the Department of Justice's Bureau of Justice Statistics released a report: Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09.

As you imagine, it's not enjoyable reading. 

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Dancing In The Dark

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Guest post by Gary Farber.  Gary's home blog is Amygdala, and he invites you to read him there.

[Eric Martin: My friend Gary is going to be pitching in for a couple of days as I adjust to the enhanced parenting techniques that my son is submitting me too.  And yes, sleep deprivation is torture.]

On December 31, 2009, three provisions of "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001," aka the "PATRIOT Act,"  sunset and expire.

Bills to reauthorize or amend these three provisions have been moving through the Congressional Judiciary Committees in the past two months.

The three sections are:  

SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978. Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting 'or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after 'specified person'.

This is also known as "the John Doe" provision.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Also known as the section dealing with "national security letters," by which:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities [….]

The third is:

SEC. 805. MATERIAL SUPPORT FOR TERRORISM.

What are these about, and why should we care?, you ask. As the ACLU explains:

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Perry and the Politics of Capital Punishment

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by publius Rick Perry has apparently decided to double down on Willingham.  After multiple articles came out documenting inappropriate political pressure on the investigation, Perry came out firing yesterday.  Here's the Houston Chronicle: Gov. Rick Perry on Wednesday defended his actions in the execution of Cameron Todd Willingham, calling him a “monster” and a “bad … Read more

Perry’s Saturday Night Massacre Continues

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by publius Orwell once wrote, "[He] who controls the past, controls the future."  Texas Governor Rick Perry has apparently taken the lesson to heart.  He's now removed a fourth member of the Texas commission responsible for investigating whether Texas (and Perry) executed an innocent man.  It's whitewashing at its worst. By now, you're probably familiar … Read more

Salon Redeems Itself

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by publius I'm in the midst of deadlines, etc., but I wanted to note that Salon has published a new essay by Professor Lee Kovarsky, who guest posted here a while back on the Court's most recent habeas decision.  In light of the recent New Yorker article arguing convincingly that Texas executed an innocent man, … Read more

Scalia Makes a Funny

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by publius I'm in the process of summarizing some Supreme Court opinions for an appellate journal. And I came across what is perhaps the best passage in the history of Supreme Court opinions. It's Scalia writing in Republic of Iraq v. Beaty: But the whole value of a generally phrased residual clause, like the one … Read more

Fair use?

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by von Gird thy loins for some light law blogging.  (Why your loins?  Because that's where the law strikes!  Ba-da-bing!  I'm here all week folks! Be sure to tip your gender-left-unspecified service people.) So here is today's issue:  What should be the limits on fair use?  It's a question that comes up from time to time, and it … Read more

He Shoulda Armed Himself

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by publius As you may have read, a Milwaukee mayor recently got beaten with a metal pipe while attempting to help a woman being attacked.  Apparently, this mayor had favored strict gun control efforts in the past.  The mayor's reasoning was the dense populated urban areas call for different restrictions than less populated places.  Radley … Read more

The Davis Tremor

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by publius

The following is a guest post from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law, who I discussed these issues with yesterday and who knows this stuff inside and out. In light of yesterday's great thread, I thought you might enjoy.  It spells out the problems with Scalia's position in ways I can't.  One interesting point he raises, for instance, is how DNA evidence poses a fundamental (and I'd say fatal) challenge to Scalia's position.
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On Monday, the Supreme Court handed down an extraordinary three page order directing a federal district court in Georgia to determine whether newly-discovered evidence would establish that Troy Davis did not commit the murder for which he was convicted and is to be executed. The order provoked an explosive response from Justice Scalia, who wrote in dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He characterized the federal proceedings in Georgia as a “fool’s errand.” Justice Scalia’s dissent sparked considerable confusion and anger, with many outraged at the thought that he endorsed the execution of an innocent man.

The decision is stunning for two reasons: (1) for the procedural posture in which the Court made it (granting an original habeas petition) and (2) for the substantive legal possibility the original habeas grant implies (that a “freestanding” claim of “actual innocence” could be a basis for federal habeas relief). Explaining why this ruling is so important, and doing so in terms that non-habeas specialists can understand, is a daunting task that I execute very imperfectly below.

BACKGROUND

Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)

Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).

In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.

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Two Readings of Scalia

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by publius

The Supreme Court did a rare thing yesterday — it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court).  Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim.  Original writs have been summarily rejected for decades.  This is a rare, strange bird we're seeing.

Scalia dissented.  And a commenter asked:

I
would be very much interested in any thoughts you have regarding
Scalia's recent dissent in a Georgia death penalty case in which he
argues that "This Court has never held that the Constitution forbids
the execution of a convicted defendant who has had a full and fair
trial but is later able to convince a habeas court that he is 'actually' innocent."

Is this as insane as it sounds?

The answer is . . . maybe.  I'll explain below the fold (wonky).  And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).

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Nomination: Worst Post of 2009

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by publius As you may know, Professor Dawn Johnsen (Obama's still-pending nominee to lead OLC) has been subjected to extremely unfair criticisms, largely because she was a vocal opponent of Bush's lawless OLC.  But this post from Powerline is just repulsive.  It relates to the course Johnsen is teaching while waiting for our bold Senate … Read more

Lessons of Sotomayor — They Ain’t All Good

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by publius She's in.  So what exactly are the political implications of the debate we just saw?  To me, it seems like a mixed bag. Ed Kilgore thinks it's "lose-lose" for the GOP.  On the one hand, he argues that the GOP's opposition will hurt them with Latinos, an increasingly large and important demographic.  At … Read more

Hate Crimes Hatin’

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by publius Oh Richard Cohen — why must you torment me so?  Today's new torment is a column devoted to denouncing hate crimes.  I guess there's nothing much going on in DC these days.  Anyway, here's the thrust of it: The real purpose of hate-crime laws is to reassure politically significant groups — blacks, Hispanics, … Read more