If the Big Firms Are Too Precious For This Case, I'll Be Happy To Step In

And not because I relish actually winning the case.

Let's back up here. Some of you may have heard how the House of Representatives, because President Obama has refused to defend the Defense of Marriage Act, took some money from the Department of Justice's budget. This money was to be used to pay former U.S. Solicitor General Paul D. Clement, a partner at King and Spaulding, The idea was that Mr. Clement would act as the attorney for the House of Representatives who would be seeking to intervene in the case.

Gay rights groups, predictably when seeing their chance at an easy win dropping, brought pressure to bear on King and Spaulding. What was surprising was the gutlessness of the firm. Today they announced that they were withdrawing from representing the House of Representatives. The head of the firm where Clement now works, Robert D. Hays,  Jr., stated that the firm was withdrawing because "Last week we worked diligently through the process required for withdrawal,[.]...In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

In many reports, its being stated that the real reason is that LGBT groups were putting pressure on the firm.  Mr. Hays has spent the better part of two decades defending mass tort litigation against corporate giants such as GM (defective cars) and companies which pollute the groundwater in particular and the environment in general, as well as defending claims based on recalled medical devices while championing the idea of preemption against tort cases. However, apparently the thought of someone calling him a bigot for defending a law, as opposed to being a corporate shill who seeks to deny compensation for people and communities damaged by corporate greed, was too much for him and others in the partnership. So they withdrew the firm from representation.

Maybe the only one with any moral fiber in the higher echelons of King and Spaudling in Mr. Clement. He has resigned from the firm in protest over the action by his partners. In his letter,which was released, he stated,

...I resign out of the firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize  any representation for one side of a legal controversy are  a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

There is more to the letter, but that paragraph right there sums up what law this is about for lawyers.

When it seemed this would be a half million dollar fee earner for the firm this year, there seemed to be no problem for the leaders of King and Spaulding. But once it got uncomfortable, they showed their true colors and abandoned ship.

For our system to work, there has to be lawyers willing to defend both side of the argument. King and Spaulding only seems to remember this when, apparently, when the cause is politically acceptable in certain sectors (e.g. defending terrorist detainees at Guantanamo). But its not just when the client is a cause celebe or a heart strings case. Sometimes the unpopular position has to be defended or represented because otherwise the system breaks down.

John Adams, one our early patriot leaders and later the second President of the United States, knew this. He was the man who accepted the job of defending the British soldiers accused of murder in the Boston Massacre. He had to defend these men in a court in a town which had become vehemently anti-British  and vehemently anti-army as a result of the Massacre and other legislation passed by Parliament. He did not defend the British soldiers because he liked them. Adams was already one of the leading Patriots in Boston at the time. He took the case because it ensured that the system would operate freely and fairly. When he recevied threats he did not back down, he did not quit on the British soldiers. He fought the case out to verdict.

Apparently King and Spaulding are not cut from the same moral or ethical cloth as John Adams.

If the House of Representatives is willing to go with a solo, I'd take the case. Not because its a law I think should be on the books, but because our system of justice demands that it be defended.

Lets Just Shred The Constitution While We're At It, Shall We?

Because that seems to be what our esteemed attorney general, Eric Holder, wants to do.

Now, I know some of you out there may ask you pay attention to things like the Constitution and Supreme Court decisions. And, you may also know that nowhere in the Constitution does it expressly mandate that when a person is taken into custody by police officers or any other law enforcement personnel, or for that matter any agent of the government wants to put someone under arrest, that they must be read certain rights that everybody knows if they've watched more than one episode of Law and Order.

In case you didn't know, the warnings that a person is given when they are in the custodial interrogation are known as Miranda rights. the reason they're known as Miranda right is because they come from a case decided by the US Supreme Court called Miranda v. Arizona. Essentially what the court found in the Miranda case is that while the Constitution didn't specifically mandate that you be read your rights, that the Constitution required the rule to be made so that the rights enshrined in the Constitution were respected by the police. he also had the nice side effect of ending the argument, to an extent, of whether a person need to be coerced or on coerced confession and whether the confession was made with their rights being knowingly waived.

Strict textual interpreters of the Constitution have always hated this rule. They feel that it was the court creating new constitutional rights rather than just applying the ones that existed. Initially police departments around the country warned that it would mean the end of effective police work, that criminals would no longer confess their crimes during interrogations because they would all take advantage of their right to silence and the right to counsel once they've been reminded of this.

It's 40 years later, and the police are still locking up bad guys.

But in recent years, the Miranda warnings have come under attack. And oddly it hasn't been attacked from just one side of the aisle, it's been attacked from both Democrats and Republicans. The critics of the Miranda warnings fear that it prevents the United States from effectively compare getting terrorists. The reason for this is that the Supreme Court has ruled that once a person asks for a lawyer than the intent addition must cease until a lawyer arrives to counsel the suspect.

Part of the confusion over the use of Miranda warnings has to do with the Democratic Party's knee-jerk reaction to anything that George W. Bush might have favored. Brenda warnings are meant for people arrested in US territory. The territory of the United States is made up of the 50 United States from overseas possessions that we administer, such as the Mariana Islands, Puerto Rico, and various other United States installations. The Miranda warnings were never intended to be used on the battlefield. Yet somehow, we've managed to foul the whole rule up about where the U.S. Constitution applies and does not apply to the point where now we are trying to extend Miranda rights to enemy noncombatants captured in the course of military operations.

Never before in history the United States have we ever tried to apply our constitutional rights to foreigners captured on the battlefield and held as hors de combat. Yet for some reason, there elements of the liberal wing of the Democratic Party that wants to do just that.

Because of this insanity, Miranda warning is coming under attack when it's used with in the United States territories when the American citizen is captured performing acts of terrorism. Sen. McCain spoke out saying that when the suspect for the New York City Times Square bombing attempt was eventually captured that they should not eat read their Miranda warnings. Attorney General Holder, an appointee by President Obama, wants to do just that the next time there is a terrorist attack in the United States.

Atty. Gen. Holder wants to ask Congress to create an exception to Miranda rule. He argues that interrogators need greater flexibility when questioning a terrorism suspect. The exception that he is proposing, he claims, will be narrowly tailored to only include people being questioned for terrorism charges. The question then becomes, who decides what constitutes terrorist act?

You'd think that would be easy wouldn't you? There's only one problem, and that is the exception that is being proposed could be used against virtually any group which opposes the party, or the man, in power. Right now it seems all very simple. Terrorists are the ones that come out of the Middle East or Central Asia, usually Pakistan, and try and bomb us because we don't agree with their brand of Islam.

However, the current administration views a number of other groups as being potential threats, and specifically potential terrorist threats, to the United States in general. back in April of last year, the Department of Homeland Security released report stating that possible domestic terrorism groups included "groups and individuals that are dedicated to a single-issue, such as opposition to abortion or immigration,...".

Remember, a terrorist doesn't necessarily need to be the bomb planter or the one shooting up a hotel full of tourists. It can also be someone who donates money to a group recognized as a terrorist group. So someone brought up on terrorism charges could be a person who belongs to the younger a poor person, under a future Republican administration, who donates to Planned Parenthood.

If you want to trade your rights for security, and you'll have neither.

Too bad that neither of the parties in power seem to remember that this is a country in which people, citizens and noncitizens alike, are entitled to certain basic rights. Rather than dealing with the root of the problem effectively, they want to chase after the poll numbers and do things which degrade our civil rights. I had hoped that Atty. Gen. Holder with a better sense than to make such a proposition, but then I remembered this was a man put into office by Pres. Obama.and the one thing that Pres. Obama has demonstrated so far during his tenure of office is that he has little respect for those who do not agree with him or those who threaten his power base. Unfortunately, this ends up resulting in legislation that hurts all, instead of the people that the president is engaged in a grudge match with.

In its zeal to win, the Obama administration seeming to forget that it was put in power to help people. To protect the Constitution. Not to shred it.

I was wrong... this redefines Chutzpah

Who the frak did we elect to the office of President of the United States? I thought that we elected someone who professed to be someone who understood our constitutional rights. Who wanted to end the abuses of the Bush Administration. Who wanted to change how this government acted towards the people it represents.

All those who voted for President Obama forgot to look at a couple of positions he took, some as late as 2008. One of those was to oppose warrantless wiretaps. He took that position in February, however by the summer of 2008, he voted to approve those wiretaps. Now to a degree, I support warrantless wiretaps (for instance I do not think you need to obtain a warrant for a wiretap that is overseas just because it hits an American number. ) But by and large, allowing limitless, warrantless wiretaps in the name of national security is wrong and violates the Constitution of the United States.

Apparently, the Fourth Amendment is some pesky thing that needs to be shredded a little bit more. At least that is what the Administration's latest proposals must be interpreted as.

President Obama's administration, which apparently cannot get a law passed, has now set its sights on something that not even the Bush Administration would have dared do: they want the ability to warrantlessly track people by their cellphones. It is, apparently, the position of Obama Administration that there is no reasonable expectioatn of privacy in one's cellphone.

Huh? Just because it is not attached to the wall, suddenly we have lost the expecation of privacy in our phones?

In case anyone is wondering hwo they will do this, just watch an episode of NCIS. While Mrs. Angrybell loves this show (and I enjoy it), there is almost a nightly example of a Fourth Amendment violation. Basically, your cellphone works by transmitting to a tower which relays it on to its eventualy destination. In many cases, your call is being uploaded through multiple towers, allowing for triangulation. That's the basics.

After 9/11, it was made mandatory that cell phone sold in the US be equipped with GPS chips. The reason for this is in an emergency, rescue crews could use the GPS to narrow down the location of people trapped in rubble who were able to use their phones.

Well, now the conspiracy theorists who warned against this are being proven correct. The Obama administration, seizing on a some district court opinions (including one by Judge William Pauley, a Clinton appointee), want to ensure that you have no privacy right in your cell phone's location. Not that you have much of a choice. According to Judge Pauley's decision (which is not available without a subscription that I can find), it is argued that a person could turn off their cell phone and thereby keep their location a mystery. However, once you turn on the phone, you lose your privacy.

Isn't that nice of the courts. You can have a cellphone but if you turn it on, you forfeit your right to privacy.

We elected this government? What were we thinking?

For a man who claimed he was going to change things in Washington to propose, or allow this to be proposed, is astonishing. To say he is someone who respects civil rights after promoting this policy takes real Chutzpah.

Is it wrong to wish that he would have an affair with an intern so that we can impeach him? Oh wait, then we would have Biden as President and Pelosi and Vice-President.

November 2012 seems so far away.

Can someone please tell this guy it is 2009, not 1967?

It was reported today that there is a justice of the peace by the name of Keith Bardwell in Tangipahoa Parish, Louisiana. He has been the justice of peace in the parish for about 2.5 years.

Now for those who don't know, a justice of a peace is a type of judge. It used to be the justices of peace (or JPs) would handle a lot of the smaller matters (traffic fines, small claims cases etc) while bigger matters would go to the municipal or superior courts. This has been changing, with some states no longer having JPs. In Louisiana, they are still used and are a part of the Louisiana judicial system. They also have the ability to marry people.

Well, Mr. Bardwell is a JP. He will marry all the people he is legally allowed to marry, except for one class. He will not marry, or issue a marriage license, to interracial couples.

He says its for the good of their unborn children. Yes, that is his reason. Even though he says he is not racist. Mr. Bardwell insists he treats everyone the same, just that he does not think it is right for a black person to marry a white person. Says he believes that those marriages never work.

So nice for a government official to decide what is right in a person's private life. Isn't it?

Has this person never heard of a case calling Loving v. Virginia?

Yes, one of the couples he has denied a marriage license to is trying to get the Department of Justice to sue. I wonder, whats the likelihood of that happening now that the Attorney General has called Americans cowards for not dealing with the question of race?

At least the school board down there must be breathing a sigh of relief. They've already been seven times.

Ridiculous, Absolutely Ridiculous

Now, let me put this out first: I do not like pillorying the police. They do a hard job. They occasionally get injured or dead to try and keep the rest of us safe.

However, I find it extremely disturbing what is going on over in Oakland. It was reported today that the Oakland Police Department will not be firing 7 officers who admitted to lying on affidavitsfor search warrants.

Let me make this clear, they were LYING on an affidavit for a search warrant. An affadavit for a search warrant is a statement of the facts which give probably cause sufficient for a judge to issue a search warrant. They are made under oath. That means, they are made under penalty of perjury.

Now, the example that one article uses (I'm not going to give the officer's name here) tells how they would submit search warrant requests to the judge, when the facts contained in those affidavits were false. For example, they would say that tests had confirmed that drugs were present when no tests had been conducted.

That is not a little thing. Its the difference between someone going to jail and not going to jail. In some cases, its the difference between keeping a criminal in jail and allowing a criminal to go free because the warrant, under which all the evidence was later acquired, was based on lies. When that happens, guess what, the criminal goes free.

The argument put forward by an attorney for the officers boils down to this: they weren't trained properly, therefore, they can't be held responsible for mistakes on the warrant application. Excuse me? Take a look at a search warrant application here and here. Notice, down at the bottom of the federal document, it says "Sworn before me". That means it is done under oath (as in I swear to tell the truth the whole truth...). The second one, a California affidavit form, even states that the affiant swears under oath that the facts contained in the affidavit are true.

It's not some rocket science. Its a simple question. At the time, did the people swearing under oath know that the facts were true or that they were not true. Lying under oath is unacceptable for peace officer, especially when it comes to a warrant.

Let me be clear about something. Even if you accept the officer's defense, the City of Oakland has a problem. On the one hand, you have corrupt officers. On the other hand, you have officers who are not trained enough to read the forms they are filling out.

However, it looks like Oakland would rather sweep it all under the rug than make sure the officers it does have on the streets are properly trained. Good job Oakland. I feel so much safer now.

The fact that Oakland has decided to allow these officers back on the job, after a nearly four month long paid administrative leave is ridiculous.

NRA v. San Francisco Housing Authority

Flush from their success before the Supreme Court, the NRA has vowed to challenge gun control laws it views as violative of the Second Amendment around the country. Two of the ones which were mentioned frequently after the Supreme Court released the decision in District of Columbia v. Heller, were San Francisco and Chicago.

The suit against San Francisco was filed on Friday before the U.S. District Court for the Northern District of California.

Now, it first might be helpful to explain what the Heller decision actually says. Written by Justice Scalia, the decision essentially states that the 2nd Amendment of the U.S. Constitution is a personal right. It is not a right which is dependent on being an active member of an organized militia. The reason why, argues Justice Scalia, is that when the Amendment was written certain terms had slightly different meanings than they do now. In 1789, militia effectively meant any able-bodied (male) person who could hold a weapon and use it as part of an organized militia. (Interestingly, he also argues that the "free state" term in the Amendment refers to a free politiy instead of a political entity. While I agree with the first definition the second one seems a little bit of a stretch.)

In striking down the District of Columbia law, the Justice Scalia's majority opinion made it clear that they were not making 2nd Amendment an exception under American law, i.e. that there were no limits on it. Within the opinion, he stated that the States and Federal government could limit the rights of felons and the instance to own firearms. He also stated that reasonable time and place limitations could be placed on the keeping of firearms (District of Columbia v. Heller, (2008) slip op. 07-290 at 54.) Specifically, the opinion states,

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

So, while the right is personal, and cannot be taken away, it can be limited as to when and where the firearms may be brought. Blanket bans are unconstitutional.

Now, the NRA has brought suit against the San Francisco Housing Authority, the City and County of San Francisco, as well as other entities which help enforce San Francisco's ban on firearms. Under San Francisco's ban, passed last August, firearms are prohibited from generally everywhere in the city that is not private property (including public buildings of the city and county, parks, and public housing operated by SFHA), unless you fall into one of the exceptions. These exceptions including police officers, military personnel, private guards, and "honorably retired Federal officers and agents of Federal law enforcement". It also curtails sales of weapons and ammunition except for a gun club/firearms range.

What the law does not do is ban ownership of firearms by private citizens in their own homes. It does not criminalize them for transporting their own weapons on city streets or sidewalks.

Now, although the gun advocates have won a significant victory with the Heller decision, that does not mean that suddenly San Francisco's gun ban on county property going to go away. There are significant differences between the Heller situation and the law in San Francisco. First off, the D.C. law banned all weapons everywhere in the District of Columbia unless you had a special permit that had to be renewed every year. Furthermore, it mandated that for those who were able to obtain the special permit, the weapon must be rendered inoperable or disabled by use of a trigger guard.

San Francisco's law does neither of these things. It only permits firearms on city and county property.

Now, the complaint was filed on behalf of NRA members in the county, including named plaintiff Guy Montag Doe (a pseudonym) for a man who lives in an SFHA unit (and I wonder now, have I ever represented this guy?) who keeps the weapon for protection. The argument goes that Mr. Doe is being denied his right to keep a firearm for self-defense against

particularly against perpetrators of sexual orientation-based hate crimes, i.e. physical attacks on persons perceived as homosexuals, motivated solely by antagonism to them because of their perceived sexual orientation.

(side note... did anyone tell this attorney who picked this guy as the named plaintiff that this is San Francisco? Yes I know hate crimes and discrimination occur, but...)

Looking at the Heller decision, a lot of the law should withstand challenge. It is unlikely that anyone in the U.S. N.D.CA is going to completely strike down this law (or the 9th Circuit). The ban on weapons in county buildings, including schools, will probably remain in effect. The banin those places can be supported by the clear wording of the Heller decision It may be closer as far as weapons in plaza's, parks, and the like, but I think that the courts will probably uphold the ban there as well.

The question, at least in my mind, is how the court is going to deal with guns in public housing. On the one hand, a lot of people live there. On the other, they are not required to live there. Now, although the argument could have been made that gun owners did not have to live in the District of Columbia, that situation was different. Under that law in Heller, nowhere in the District of Columbia could a person own a firearm, even in their own private homes. Under the San Francisco law, the right is not curtailed in private property, only on government property.

Furthermore, there is a host of case law which acknowledges that if you accept public benefits you have to comply with the rules of the benefit programs in order to retain those benefits. People receiving SSDI/SSI have to spend down their assets or forego other types of employment if they want to retain their benefits. People who are receiving aid under Section 8 have to comply with the programs guidelines and re-certify economically periodically. Arguably, both require a person to forgoe property rights that they might have had by earning additional money (i.e. a Fifth Amendment taking does not occur).

While I don't have brief ready to go to court on this one, I am sure some well-qualified attorney over at the San Francisco City Attorney's office is already putting together the case law to write one up on this issue. Basically, I think the NRA is not going to get the law struck down like they think they will.

Oy! My Head This Week From All the Supreme Court Decisions

So, as anticipated, with the end of term approaching, the Supreme Court has been releasing its decisions in the most controversial cases. Since I have to actually try and work (more so since I just got back from a little trip) I am still putting my thoughts together on some of the cases that picque my interest.

However, I saw today that the Supreme Court ruled 5-4 in District of Columbia v. Heller. Essentially, the majority held that there is an individual right to gun ownership and that blanket bans such as the ones in the District of Columbia are unconstitutional.

Now, I am not a gunowner. When I read the 2nd Amendment, I see that there is a provision for a well-regulated militia and an individual right of the people to bear arms so that there is a militia. However, I am also some one who lives in the 21st Century and realize that well regulated militias no longer drill on the town green ever few weeks before heading off to the tavern for a few pints of beer (which the locality would pay for usually in exchange for showing up for the drill).

Therefore, it would seem that the Court got this one right (I'll tell you more when I finish reading the opinion). However, this does not mean an end to gun regulation.

Now, some people would tell you that any regulation on firearm ownership is just wrong. But I think there is an opportunity to do some things that would both respect the rights of gun owners and assuage fears on the left of guns flooding the streets.

My initial response is to propose that there be some additions to the state statutes. One of them making it a felony to lose control of a weapon that is stored that does not have a trigger lock. Another would be a statute making it per se negligence to own a firearm without first attending a firearms safety course. You want to exercise your right to have a weapon, fine, you have to be responsible for it.

Most gun owners I know are actually very responsible people about their weapons. However, I do remember some idiots from when I was growing up. I think the goal, when it comes to personal ownership of firearms, should be to make sure that people understand the gravity of exercising that right, not trying to prohibit them from exercising it.

Of course, this could all change after I finish the decision and dissent.

Note: World Has Not Ended

Even though California has allowed two women to get married. And here I was promised brimstone... or at least the end of civilization. What a gyp!

Isn't It Ironic

As a rule, I really, really dislike obscenity trials. We live in a country where the freedom of speech is deemed to be one of the fundamental freedoms (unless of course you happen to be someone who believes that "free speech zones" are constitutional). So when talking about criminalizing speech as "obscene" then, in my opinion, in most cases you are talking about supporting censorship.

Which is why today's news is a bit ironic. In Los Angeles today, a trial has started. In it, the Department of Justice is prosecuting Ira Isaacs for obscenity. Now, Ira Isaacs is not some misguided artist, or someone trying to make a statement with their art. He is a porn producer. Among the titles he is being prosecuted for, include such titles as "Hollywood Scat Amateurs No 7" and "Gang Bang Horse (Pony Sex Game)". (A strong advisory is out not to Google search for any of Mr. Isaacs' videos).

Now, whether or not these videos are obscene is not something I am going to comment on. Whether they should be criminalize, is something else. Regulating speech is something that is a slippery slope. Would I want to watch any of the titles I have heard of Mr. Isaacs producing? Almost certainly not. Should he be criminally penalized for his speech (as opposed to perhaps animal cruelty or health and safety regulations)? I think not.

By the way, the test of whether something is obscene, as defined by the U.S. Supreme Court in Miller v. California, is whether (1) the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the material depicts or describes sexual conduct in a patently offensive way; and (3) the material, as a whole, lacks serious literary, artistic, political or scientific value.

In the past, trials have upheld the artistic value of photographs shown depicting homosexual sex, sadomasochistic acts, "filthy" or profane language. Some literary works which are now considered to be classics, such as Ulysses, Lady Chatterly's Lover, and Last Exit to Brooklyn, have all been attacked as obscene in various court systems. After long periods, have eventually been cleared of being criminally obscene.

Alright, now for the ironic bit. At the same time that the trial judge is warning the jurors about the graphic nature of the images which they will be shown as part of the evidence, another story has come across the wire. Apparently, the chief judge of the Ninth Circuit Court of Appeals has had to pull down a website. A website which contained "a video of a man cavorting with a sexually aroused farm animal[.]" Judge Kozinski has since restricted access to his website. Ultimately, if there is a conviction in the Issacs case, Kozinski is the Chief Judge of the court of appeals which will hear the appeal.

Correction and update at 2122:

I made a mistake earlier. Apparently Judge Kozinski is the trial judge. Although Judge Kozinski is the Chief Judge for the Ninth Circuit (making him an appellate judge), it appears that there is a program where Ninth Circuit judges are hearing trial cases in criminal matters. It appears that Kozinski has offered to recuse himself in this case. Above the Law apparently has Judge Kozinski's explanation about how this all happened.

In Case You Did Not Hear That Sound....

....from all the right-wing conservative groups.... the California Supremes today handed down an itty bitty decision on family law. Here it is... all 172 pages of it. I will be reading this for a month.

S147999 - Upload a doc

Read this doc on Scribd: S147999

Do you think that maybe Obama and Hillary were hoping that the California Supremes were willing to take a pay-cut so they would not have to talk about this?

Not Exactly Where I Would Expect This Ruling To Come From

But apparently, a court in Iowa just upheld gay marriage and struck down an Iowa state statute which declares that marriage can only be one man and one woman. Now, this was a district court and not the state supreme court. However, barring a motion to reconsider, it appears that this will be on the Iowa Supreme Court's docket very soon.

Right now, political operatives in the Democratic and Republican parties are drinking... for very different reasons.

The 63 page decision of the court can be found here. The briefings on which the court decided can be found here, on the Lambda Legal site.

Funny, I Thought They Said Terrorist Trials Would Never Work..

And yet by my count, the Bush Administration has a winning record in prosecuting terrorists. The managed to get verdicts against Moussaui and Reid. And today Padilla was convicted in a trial held in the U.S. District Court.

For more than 2 years, the Bush Administration fought against the idea of according him his civil rights. They maintained that it would be too dangerous, that it he could be summarily designated an enemy combatant. That essentially, the President could determine which citizens of this country they thought should be tried and accorded their rights.

Whether or not he was innocent, the fact that he had a reasonably fair trial (since no trial is perfect) just goes to show what is right with the system. And what is wrong with Bush's perception of justice and the American system of justice.

Can I Help?

Apparently there was a campus rally over at San Francisco State University recently. At the rally, a flag was stomped on. Someone complained. Now the people who were responsible are being brought up before a school disciplinary committee on charges that they attempted to incite violence and create a hostile environment as well as committing acts of incivility. In addition to this, the student government at SFSU has passed a resolution condemning this action. If these guys get more than just a tongue lashing about how they should play nice with others, and they end up a needing a lawyer, I'd like to offer my services.

Now, flags have been getting stomped and burned in this country and others for a long time. It's a protected form of free speech. For the university to punish students for this, I can't think of anything else to say other than its just wrong and they should know better.

The fact that it was a Hamas flag, being stomped on by SFSU College Republicans, instead of an American flag being stomped on by [insert your anti-US group].

Ugh, who thought I would take the side of FIRE and the Republicans.

But seriously, I would love to help defend this kind of action.

Something About the Argument Does Not Work

For more than five years the Bush Administration has been trying to roll back the civil rights of people charged with crimes. Essentially, the argument goes that there are certain crimes that the regular criminal justice system just absolutely cannot handle. Therefore, the Executive Branch must be able to make determinations in each case as to whether the a crime should be handled by the criminal justice, with all the rights accorded under the U.S. Constitution, and when you end up in a special federal prison, with extremely curtailed rights.

So far, the argument does not seem to work. Zacarias Moussaui is currently spending a life sentence in prison for his terrorist activities. And then two days ago, Demetrius Crocker was convicted of planning to use a dirty bomb.

Interestingly enough, this was a case that was conducted entirely as criminal matter from the begining by all accounts. A retired sheriff's deputy tipped off the local authorities who asked for, and received, help from the FBI. After taking the time to make sure that this was an actual crime, and not the harmless ravings and plotting of a deranged individual, he was arrested and brought to trial. There was no Navy Brig, nor military commission. Instead, he was convicted by a jury of twelve people on al lcounts which he was indicted.

So let's see, two major terrorism cases that have gone to trial. Prosecutors, despite the Bush Administration's intereference in the Moussaui case, managed to get convictions on both of them, putting both of the men away for significant terms in jail.

On the other hand, we have the ongoing embarrasment which is the Jose Padilla case. Based on the flings, he has been kept in conditions which we do not condone in other nations. And yet, we are not closer to bringing a close to his case.

Interesting Hearing That Just Finished

The f-bomb was apparetnly flying about in a Second Circuit Court of Appeals courtroom. The Second Circuit was hearing oral arguments about how the FCC has been enforcing standards for language on broadcast TV.

At issue is when is it permissible to use what some would consider profane language. Fox Television is appealing the FCC's policy on language, claiming that its too vague. For instance, language used in Saving Private Ryan, which has been broadcast on TV, cannot be used in other shows without incurring fines. Essentially, what Fox is arguing is that the government arbitrarily enforcing the rules and infringing on the First Amendment.

Not that I want Janet Jackson's nipple on my screen all the time, but I think that they have a point there.

Death Penalty Ruling

Earlier today, a federal judge ruled that execution by lethal injection violates the Eighth Amendment of the United States Constitution. Now, I understand that some people believe that the death penalty is unjust and should be abolished. There are some days when I agree with those people. However, based on the research I have done (and I had to do alot of it), the death penalty, in virtually any form, is not unconstitutional.

The basis for most attacks on the death penalty is that it violates the constitutional guarrantee against cruel and unusual punishment. So where did we get this notion that cruel and unusual punishment should be prohibited?

Like many other concepts in our Constitution, we derived it from English law. In particular, from a guarantee in the English Bill of Rights of 1689. In it, it states, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;". When the founding fathers were drafting our constitution and the first ten amendments, they were essentially seeking to enshrine the rights which they had been brought up believing were inherent to all freeborn men.

Now, what became the 8th Amendment was as a result of some of the abuses which happened during the 17th century. Among them was the way in which some people were punished. The prohibition did not intend, or in fact, curb th euse of the death penalty. It was meant to curb sentences for crimes where the punishment was less than death. In particular, it was in reaction to a sentence handed down to a cleric by the name of Titus Oates, who had been implicated in teh Popish Plot against King Charles II. The sentence handed down, as related in Harmelin v. Michigan, was,

"The court then decreed that he should pay a fine of "1000 marks upon each Indictment," that he should be "stript of [his] Canonical Habits," that he should stand in the pillory annually at certain specified times and places, that on May 20 he should be whipped by "the common hangman" "form Aldgate to Newgate," that he should be similarly whipped on May 22 "from Newgate to Tyburn," and that he should be imprisoned for life.

501 U.S. 957

And by and large, it has remained that in American jurisprudence. The Supreme Court has variously held that hanging, firing squad, gas, and the electric chair are all allowed under the Eighth Amendment. The one that I am aware of that has not been allowed is drawing and quartering.

So is this is a correct ruling? Based on my understanding of the Eighth Amendment, the judge has written a bad decision. (As of this time, I have not been able to get a copy of the ruling.) However, does that make me hypocritical when it comes to my basic support for judges who interpret the constitution rather than remain strictly literalist?

This Is Something Important To Think About

And my initial reaction is that this is an extremely ill-conceived notion.

What is this of which I speak? It is a bill which was introduced recently and called "Stop the Online Exploitation of Our Children Act of 2006".

So am I for the exploitation of children? Of course not. What I am against is are some of the provisions of the proposed bill. As Think Progress noted, the bill would do some of the following:

– Commercial websites and personal blogs “would be required to report illegal images or videos posted by their users or pay fines of up to $300,000.”
– Internet service providers (ISPs) are already required to issue such reports, but under McCain’s legislation, bloggers with comment sections may face “even stiffer penalties” than ISPs.
— Social networking sites will be forced to take “effective measures” — such as deleting user profiles — to remove any website that is “associated” with a sex offender. Sites may include not only Facebook and MySpace, but also Amazon.com, which permits author profiles and personal lists, and blogs like DailyKos, which allows users to sign up for personal diaries.

A bill like this would certainly abridge First Amendment rights to freedom of speech and turn hosting sites and ISPs into monitors of what is and is not legal. And we all know how much corporations like to err on the side of protecting themselves.

Now, I know that its very rare that I get comments here, but think about other sites where you do leave comments and what that does add to the discussion of... anything.

If you would like to speak out on this to McCain directly, you can do so here. If there is some other way to protest this bill that someone else is aware of, please let me know.

Now why didn't I think of that?

This would have been an interesting case to be a part. Apparently someone finally brought suit to get the federal government to change the money so that those with vision impairments can tell the denominations apart.

When I lived overseas, I got used to just feeling into my pocket or wallet and not having to look down to make sure that I had the right bill when I was paying for something. Now I have to look.

However, I wonder if this might slow a push to making all transaction based on some sort of electronic cards like we have now.

One of those times I am happy not to be a subject of the Crown

Many of what we regard of as basic rights, we have because of the rights won by the English in the centuries leading up to us.

Apparently, Parliament did away with one of those, or at least severely curtailed it, back in 2003, when the Blair government passed a law which allowed for the re-prosecution of certain offenses (most notably murder) even after a jury had found a person to be innocent of the crime. Now, I am all for getting the criminal and putting them away (and sometimes more). However, I'm uncomfortable in doing away with the double jeopardy rule and allowing the government to keep coming after someone after a jury has found him or her not guilty.

So now someone who had been found not guilty, is back in the dock facing a murder charge for a third time.

Thankfully, we still have a Constitution.

The Definition of Chutzpah

The best definition for chutzpah used to be the example of the boy who killed both his parents for their money and then threw himself on the mercy of the court claiming that he was an orphan.

That might changing. According to an article that I was liked to via Skelly at Arbitrary and Capricious, apparently neo-Nazi white supremacists are claiming that they are orthodox jews in order to get kosher meals.

Freedom of religion needs to be respected... but maybe there is some way to actually respect it instead of allowin it to be abused.