For those who forget exactly what the Fourth Amendment protects, an oversimplified explanation would be that it protects individuals against unreasonable searches and seizures by the government/state and has long been considered an essential check on governmental abuse of its state police powers.
Appropriately, Slate heralded the case as “the most important case you’ve never heard about� and unfortunately, they are probably right as I haven't seen a lot of coverage of the case in the news.
Slate goes on to sum up the issue in Hudson:
At issue is whether or not police who used an illegal "no-knock" raid to enter a defendant's home can use the drugs they seized inside against the defendant at trial. To understand the importance of this case, some background is in order.
As the name indicates, a "no-knock" raid occurs when police forcibly enter a private residence without first knocking and announcing that they're the police. The tactic is appropriate in a few limited situations, such as when hostages or fugitives are involved, or where the suspect poses an immediate threat to community safety. But increasingly, this highly confrontational tactic is being used in less volatile situations, most commonly to serve routine search warrants for illegal drugs.
In other words, does the Fourth Amendment prohibit evidence obtained from a no-knock search from being used against a defendant? Previously the answer was a firm, "yes". In legalese this doctrine is referred to as the exclusionary rule. However, in a 5-4 opinion that is extremely deferential to the government/police, the Supreme Court answered with a resounding "no."
The always-helpful SCOTUSblog puts it this way:
When the case was argued on May 18 (the second of two arguments in the case this Term), it seemed clear that a major Fourth Amendment ruling was in the making. The final opinions justify that impression.
The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.
[snip]
In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct. It exhibited a greater willingness than it has in the past to trust police officers to avoid constitutional violations, and a belief that that trust can better be reinforced by means other than judicial suppression of evidence that is vital to successful criminal prosecutions. This theory was most vividly in display in Justice Scalia's analysis of present-day deterrents that may keep police in line. "It seems to us not...true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all," Scalia wrote.
Scalia posits an interesting theory which could possibly also be described as wishful thinking which tends to be repudiated by real life crime-fighting- that the possibility of suppressing evidence gained from police actions that violate the 4th Amendment has not been a meaningful deterrent to such violations. And that begs the question- then what is?
Well, the blog Crooked Timber points us to the answer- and pulled right from Justice Scalia's opinion no less:
By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of “public-interest law firms and lawyers who specialize in civil-rights grievances … [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline … [and] the increasing use of various forms of citizen review can enhance police accountability� all mean that the fourth amendment can be reinterpreted.
I am willing to bet there are quite a few citizens out there who would beg to differ.
And the blog, The Agitator, reminds us why allowing the police to break down your door without first announcing their presence, may in fact be important, never mind the privacy concerns:
Just for review, those reasons would include the terror and fright associated with having once door beaten down in the middle of the night by armed, masked men; the unimaginable predicament a homeowner is unwillingly put in when he must decide if the intruders are cops or criminals, and whether to confront them or succumb to them; the injury and death that often transpires (to police, suspects, and bystanders) as a result; the right to assume one's home is his castle and place of asylum, and the idea that one should have the opportunity to answer police and avoid the fright and property destruction resulting from a forced entry; and the fact that the perilousness of the situation can lead to police themselves mistaking harmless gestures on the part of suspects as threatening or menacing, again resulting in unnecessary death and injury.
It remains to be seen what impact this decision will have on future Fourth Amendment cases that DON'T deal with the knock-and-announce rule. But so far, many seem to think that this case signals an about-face on the previously accepted and long standing interpretation of the Fourth Amendment and the exclusionary rule.
]]>A secret military campaign to plant tailored "news" in Iraqi papers caused a fresh stir today as the chairman of the Senate Armed Services Committee said he would bring the affair before his panel and the Senate Democratic leader called on the Bush administration to "come clean."
The Armed Services chairman, Senator John W. Warner, said this afternoon that he remained "gravely concerned" over the disclosure that a Washington-based public relations firm working in Iraq had been hired to translate articles written by American troops into Arabic and, in many cases, give them to advertising agencies for placement in the Iraqi media.
Under the program, some friendly Iraqi journalists reportedly have also been given monthly stipends - a practice that Mr. Warner, a Virginia Republican, said could not be justified.
The Pentagon launched an investigation and released findings which found that such propaganda was legal:
It was reported previously that Rear Adm. Scott Van Buskirk's review of U.S. propaganda efforts in Iraq found that no regulations were violated by the "multipronged campaign."
According to the New York Times, the three-page summary of the Pentagon review calls the military's covert authorship of Iraqi newspaper articles "appropriate," but suggests new guidelines to "determine when attribution may be appropriate."
No US court reviewed this case and the conclusions in the report raised some eyebrows as the investigators at the Pentagon were seen as having a bit of a conflict of interest since they were basically reviewing actions which they themselves may have had a hand in- The Secretary of Defense, Donald Rumsfeld, has made no secret about his belief that the propaganda of the enemy (in Iraq) should be combated with our own propaganda.
The use of propaganda during wartime has always been a contentious issue and naturally, the blogosphere has weighed in on both sides of the issue. One blogger, LaShawn Barber, comes down on the side of allowing/supporting our propaganda efforts, saying:
If you're like me, you don't mind a little propaganda with your coffee.
As a conservative who supports the war on terrorism wholeheartedly, for example, including the "battle" in Iraq, I tend to give more weight to pro-war messages than "peace" messages. If we want to rid the world of war, we have to rid the world of sin. We don't have the power to do this, but we have the power to protect ourselves from attack.
That's why I believe certain types of propaganda during wartime are permissible (I can already see the e-mail coming!). I listen to old radio shows, and I especially like the ones broadcast during WWII. I even like the commercials. Everyone and everything seemed patriotic. We're wise enough to know this wasn't the case. The point is that Germany and Japan heard and saw pro-American and anti-German and anti-Japanese propaganda, which was the point. If nothing else, America presented a united front to the enemy, which I think is an extremely important psychological tactic during wartime.
But this week, a new wrinkle in the debate was introduced when it was revealed that the Bush administration was using US news outlets to plant fake news stories in the American media about the Iraq war effort - this has been a long-standing legal no-no. It has been established practice througout the years to use propaganda targeted at foreign audiences, but as the blog, Truth Out, notes:
US law forbids the Pentagon from conducting propaganda campaigns against American audiences. And though efforts such as the websites target foreign countries, they are available to any person with a computer.
It appears that our government may be in direct violation of the law and federal authorities are currently investigating the allegations:
Federal authorities are actively investigating dozens of American television stations for broadcasting items produced by the Bush administration and major corporations, and passing them off as normal news. Some of the fake news segments talked up success in the war in Iraq, or promoted the companies' products.
Investigators from the Federal Communications Commission (FCC) are seeking information about stations across the country after a report produced by a campaign group detailed the extraordinary extent of the use of such items.
The report, by the non-profit group Centre for Media and Democracy, found that over a 10-month period at least 77 television stations were making use of the faux news broadcasts, known as Video News Releases (VNRs). Not one told viewers who had produced the items.
Interestingly, the fake news stories are not just about the war effort, but about corporate products. It's difficult to balance a free press on the one hand while knowing that the government can plant fake news stories favorable to its agenda without our knowledge, on the other.
Stay tuned...
]]>As everyone by now knows, our National Security Agency (NSA) has been taking part in spying activities without warrants and which tend to cast a much larger net than the Bush administration originally acknowledged. The Bush administration refers to the program as "The Terrorist Surveillance Program" but the problem, legally at least, is that millions of Americans with no known or suspected ties to terrorism have been caught up in the governments vast data mining operation by using private companies like AT&T, Bell South etc. to listen in on private phone calls en masse.
]]>As everyone by now knows, our National Security Agency (NSA) has been taking part in spying activities without warrants and which tend to cast a much larger net than the Bush administration originally acknowledged. The Bush administration refers to the program as "The Terrorist Surveillance Program" but the problem, legally at least, is that millions of Americans with no known or suspected ties to terrorism have been caught up in the governments vast data mining operation by using private companies like AT&T, Bell South etc. to listen in on private phone calls en masse.
A lawsuit challenging the government's actions is pending in federal court but a new revelation has the media, legal experts and the blogosphere buzzing- the fact that the CIA and FBI are spying on reporters at ABC, The New York Times, The Washington Post (to name a few media outlets). And this brings us face to face with a showdown between the Patriot Act and the First Amendment.
ABC news, which has found itself right smack in the middle of the controversy, reports:
"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official.
The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.
[snip]
Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).
The NSLs are a version of an administrative subpoena and are not signed by a judge.
First Amendment protections for journalists have been essential to any reasonable notion of a "free press" but suddenly the media finds itself in the cross-hairs of an extensive government effort to not only monitor press activity but to prosecute members of the media believed to have received confidential information on illegal government activity.
While courts have generally allowed expanded governmental authority for reasons of national security, the blog Dees Diversion points to something which should give the judicial branch pause, even after 9/11:
The ABC report claims that the CIA was upset by the network's reporting on secret prisons in Romania and Poland, and by reports that revealed the use of predator missiles inside Pakistan.
Problematic? Yes, very. Spying on people with real or perceived ties to terrorist activities is one thing, but violating the privacy rights of those who are believed to be critical of the government, are two very different issues altogether.
Generally, the Fourth Amendment requires that the government obtain warrants for such activity- something the Bush administration considers little more than a quaint legal "technicality." The warrant requirement helps ensure that the government has some reasonable basis (or "probable cause") for believing that their incursion into a person or organizations privacy rights is justified. Without a warrant, no such safeguards are present. And as most first year law students know, when a federal law (like the PATRIOT Act) comes up against the US Constitution, the Constitution wins. At least that was the way it used to be.
The way around that? To proclaim a broad executive branch authority as justification for brushing aside such quaint consitutional relics of a bygone era (ie. the Fourth Amendment prohibition against unreasonable searches and seizures):
Consistent with its desperate desire to avoid any judicial adjudication of the legality of its conduct, the Bush administration has once again invoked the "state secrets" doctrine, this time #"to attempt to force dismissal of the lawsuit against AT&T brought by the Electronic Frontier Foundation. That lawsuit alleges that AT&T violated various provisions in the law by collaborating with the NSA to allow the agency access to the telephone conversations and releated calling data of Americans without the warrants required by law.
As always, what the Bush administration fears most are judicial rulings as to whether its extremist policies are legal, precisely because it knows they aren't. In this case, it's the warrantless surveillance program they are attempting to shield from judicial adjudication, but they have played the same game with a whole host of other lawbreaking measures. It is precisely because they have thwarted any investigation into their conduct and any judicial review of it that it is so imperative that there be some mechanism for subjecting their behavior to meaningful scrutiny. Having Democrats obtain subpoena power in November is one to achieve that (h/t EJ in comments for both new items).
Lest one think this is a purely partisan issue, think again. Conservative legal watch-dog groups like Judicial Watch are deeply concerned with the ever-expanding police powers of the federal government.
And legal blogger Christy Hardin Smith (and Jane Hamsher)over at Firedoglake don't mince words about the program and [what they believe are]the reasons for it:
But for the Bush Administration, which is clearly willing to go to any lengths to spy on its critics and suppress and intimidate people who might be willing to come forward as a whistleblower...
now that the media has been specifically targeted, do you think they might report more aggressively on domestic spying without a warrant? And, if so, do you think the Bushies can spell "backfire?"
Whether the media will directly challenge the governments actions on First Amendment grounds remains to be seen, but I am not sure how they could justify NOT doing so lest their ability to their job as reporters becomes severely hampered by fear of governmental prosecution under PATRIOT.
]]>Her refusal to engage in public debate has infuriated many gay-rights activists. But she's making her point now, on her terms. "Didn't you just see me go on 'Good Morning America'?"
And when she decides it's her turn, she definitely knows how to get in her licks. In her book, Cheney devotes two chapters to her anger and frustration -- and outright dislike -- when it comes to Kerry and Edwards. And this is where the quick, wry, humorous tone of the book brings in a little venom. She thought Edwards, whom she ridicules for his fixation on his hair, "was complete and total slime." She quotes her sister calling Kerry a "complete and total sleazeball." She herself called him a profanity, she recounts with relish, after Kerry invoked the fact that she is a lesbian in non-response to a question during the presidential debate about whether he believes homosexuality is a choice.
I have seen a lot of good and bad press about the book- mostly good from the mainstream media and mostly bad from liberal bloggers and gay activists, but this passage from law blogger, Professor Althouse, caught my attention:
Must we be so hard on the poor, defeated candidate? He already suffered so much for saying "I think if you were to talk to Dick Cheney's daughter ... who is ... a lesbian," and he was merely trying to get elected. And then he not only lost, but lost in part because he made that remark. Now, because of his innocent invocation of her name, Mary seems to feel entitled to savage him. Oh, why can't Mary see the great benefits to gay people that would have flowed from a Kerry presidency, as opposed to the terrible harms inflicted by Bush?
Ms. Althouse is, of course, being sarcastic but I thought she was making a very questionable assumption- the assumption that the current administration hasn't inflicted "terrible harms" to the cause for gay and lesbian equality, including legal recognition of rights (including marriage and adoption). But that of course is debatable and the comments section of her blog dives right into that debate and if you are interested in this issue, you might want to check it out and have your say.
]]>First, Space Law Probe discusses a very specialized area of law- all the legal issues surrounding law in outer space. I have to admit this is something I know nothing about. And understandably it's no small matter as more and more governments are trying to create space stations and private citizens are planning trips to outer space:
]]>First, Space Law Probe discusses a very specialized area of law- all the legal issues surrounding law in outer space. I have to admit this is something I know nothing about. And understandably it's no small matter as more and more governments are trying to create space stations and private citizens are planning trips to outer space:
And Rene Oosterlink of ESA and professor of space law at the University of Ghent in Belgium, featured in the video, concludes, the Outer Space Treaty was drafted at a time when all space activities were governmental while today, most space ventures are private, including launch, telecom, etc. Thus, "there would be a need to review the space treaty."
Next, erblawg gives a review of what the Supreme Court has been up to, at least with respect to their less publicized cases/issues:
Currently, the Court is considering whether a convicted killer is entitled to a new trial because of potentially inflammatory "victim photo buttons" worn by the victim's family at his initial trial. Mathew Musladin's conviction and life sentence had been thrown out by a lower court because of the buttons. The Court will consider whether Appeals Court Judge Stephen Reinhardt correctly ruled that the buttons sent the wrong message to the jury.
Finally, the UCL Practitioner touches on a very interesting topic, particularly to law bloggers- whether or not Judges cite law blogs in their judicial opinions and the answer is not only surprising, but also validating:
3L Epiphany has scored a coup-interviews with two judges who have cited legal weblogs in their published opinions. Ohio Supreme Court Justice Judith Ann Lanzinger and United States District Judge Richard G. Kopf of the District of Nebraska both cited the blog Sentencing Law & Policy in their opinions, and both have some interesting things to say about law blogs.
It used to be that judges relied primarily on past cases and law review articles (and of course the statute and legislative intent) when bolstering their arguments for or against a particular legal position. This is an interesting development that will likely prove controversial in some legal circles.
]]>Testimony in front of a grand jury is confidential so at this stage we don't know exactly what Rove was asked but luckily his lawyer, Robert Luskin, likes to leak confidential stuff about the case and his client to the media so we may soon find out, albeit in a manner most favorable to Rove. Playing the media is part of Luskin's legal strategy and in the past it has been quite successful.
The big question is whether this appearance signals an imminent indictment against the President's chief political advisor:
Karl Rove's appearance before a grand jury in the CIA leak case Wednesday comes on the heels of a "target letter" sent to his attorney recently by Special Prosecutor Patrick Fitzgerald, signaling that the Deputy White House Chief of Staff may face imminent indictment, sources that are knowledgeable about the probe said Wednesday.
[snip]
A federal grand jury target letter is sent to a person in a criminal investigation who is likely to be indicted. In a prepared statement Wednesday, Luskin said Fitzgerald indicated that Rove is not a "target" of the investigation. A "target" of a grand jury investigation is a person who a prosecutor has substantial evidence to link to a crime.
Last week, Rove was stripped of some of his policy duties in a White House shakeup orchestrated by incoming Chief of Staff Joshua Bolten. The White House insisted that Rove was not demoted, but insiders said the executive branch is bracing for a possible indictment against Rove.
The women at Firedoglake, who pride themselves on being "Plameologists" (with good reason) have a nice background about Rove's previous four trips to the federal courthouse, here.
Jeralyn over at Talk Left raises some of the possible issues being discussed during today's testimony and thinks Rove and his lawyer are actually trying to reduce/prevent any jail time depending on the level of cooperation from Rove.
Karl Rove testified for the 5th time before the Plame grand jury today. Is he still trying to save himself or is he shoring up Fitzgerald's case against someone else? Is he singing about the belatedly turned over e-mails from Dick Cheney's office? Or about who provided the information to Bob Woodward's source about Valerie Plame Wilson?
[snip]
A fifth appearance is unusual for a subject without a deal, but not for a subject who has agreed to become a key prosecution witness.
When Luskin says Rove has no deal with Fitz, I think he's saying there has been no final promises as to the amount of a sentencing reduction Rove will get for his cooperation -- or even an agreeement as to the precise charges that will be brought against him. That doesn't mean that Rove has not agreed to help Fitz in exchange for whatever Fitz decides his reward should be.
I have one question that I would like answered in all of this- why does Karl Rove still have top-level security clearance after all of this? I think it would be legally prudent to revoke his clearance pending the outcome of this matter.
]]>Taylor Marsh, writing over at Firedoglake, takes on this issue and questions why there seem to be different standards depending on who is doing the leaking:
]]>Taylor Marsh, writing over at Firedoglake, takes on this issue and questions why there seem to be different standards depending on who is doing the leaking:
Okay, let me get this straight. The Leaker in Chief, George W. Bush, can leak information to Lewis Libby, with no repercussions whatsoever. Deadeye can do the same. But a whistleblower, a member of the CIA's Inspector General's office, leaks the existence of illegal black sites to a reporter, because she feels something wrong is being done in the name of the American people, and she gets fired. Not only fired, but pulled out and identified as nothing short of a traitor.
In other words, the Nixon rule really does apply. If the president does it it's okay, but if it's done by a whistleblower she gets fired, with humiliation and the "traitor" tag waiting for her on her departure. Even people who don't like Mary McCarthy are saying something smells.
Ms. Marsh is referring specifically to the revelation that a high-level intelligence officer has been fired by the CIA for giving information to the Washington Post's Dana Priest about the U.S. Government's secret prisons, or black sites, as they are also known.
Ms. McCarthy, the CIA official in question, was likely fired for violating the terms of a contract she signed which stipulated she would not disclose any intelligence information to outside sources. However, there is the question of when a leak is more than a leak and when does the person become a whistleblower who actually is performing a service to the community (or nation) by disclosing government wrongdoing? Think Deep Throat.
There are laws that protect whistleblowers in certain circumstances but where intelligence is concerned, it gets more tricky.
And speaking of intelligence leaks, here's another allegation that will soon light up the blogosphere like the NY skyline during a lightening storm:
Secretary of State Condoleezza Rice leaked national defense information to a pro-Israel lobbyist in the same manner that landed a lower-level Pentagon official a 12-year prison sentence, the lobbyist's lawyer said Friday
[snip]
The allegations against Rice came as a federal judge granted a defense request to issue subpoenas sought by the defense for Rice and three other government officials in the trial of Steven Rosen and Keith Weissman. The two are former lobbyists with the American Israel Public Affairs Committee who are charged with receiving and disclosing national defense information.
The question is, what happens when our government officials selectively leak intelligence information for political purposes? Do the same legal rules apply? Can they be "fired" like Ms. McCarthy was? Or is it yet another executive privilege being exercised?
Stay tuned...
]]>Over at Sassy Lawyer, the question of whether the death penalty is a deterrent or a vendetta is raised, with an eye towards focusing on the appropriate role of the legal system in bestowing either of the above:
I am ambivalent towards the death penalty but not really because I view it as a violation of human rights. The way I see it, in strict legal terms, so long as the due process requirement has been complied with (an impartial trial including the chance to be heard), the death penalty is legally sound. My reservations lie elsewhere.
[snip]
Thing is, it is precisely the role of the criminal justice system to step in so that the situation does not devolve into an "an eye for an eye" scenario. The supposedly impartial law should have a mediating effect so that every party-offender, victim and society-gets what is due.
But a law calling for the death penalty only seems to favor one party-the victim. And it favors the victim by encouraging the mentality that for a life forcibly taken, the only just price is the taking of the offender's life. And I thought that the "an eye for an eye" mentality went passé with the barbaric ways of the Middle Ages.
In another corner of the blogosphere, Dr. Jillian Todd Weiss blogs about transgender rights and has excellent resources on the topic. Most recently she points us to Hawaii where they are attempting to incorporate gender identification as a category in an antidiscrimination law:
A bill has been introduced in the Hawaii legislature that would prohibit discriminatory practices in public accommodations on the basis of gender identity or expression, or sexual orientation. The link indicates that it was introduced at the last minute in an attempt to overcome an expected veto.
Hawaii has had several not-well-publicized cases dealing with this issue bouncing around the Appeals Courts and now the legislature is attempting to deal with it head-on. It will be interesting to see how the law is received by the people of Hawaii and the national media, should it pass.
The legal blog, erblog, discusses the camera-shy Supreme Court and looks into why most of the black robes are so opposed to having cameras present in the Court of Last Resort:
...it was reported that Supreme Court Justice Anthony Kennedy voiced a strong opposition to filming court proceedings, joined by Justice Clarence Thomas. Justice Thomas said that cameras would reduce anonymity in the Court, requiring more security. Additionally, Thomas stated that requiring the Court to allow cameras could prompt "some conflict between the branches" no doubt referencing the ongoing debate between the legislative and judicial branches regarding policy issues such as abortion.
I have my own opinions as to why they might want "anonymity in the Court", but since Justice Thomas and Justice Kennedy didn't ask me.....
]]>The Scooter Libby/Plamegate case has heated up in the last week, as special prosecutor Patrick Fitzgerald filed pleadings that seem to implicate the Executive Branch in the scandal. This raises a couple of important questions, tantamount among them is whether the President and/or Vice President lied to the prosecutor when they were originally questioned by him about their knowledge of the leak of the identity of covert CIA operative, Valerie Plame Wilson.
]]>The Scooter Libby/Plamegate case has heated up in the last week, as special prosecutor Patrick Fitzgerald filed pleadings that seem to implicate the Executive Branch in the scandal. This raises a couple of important questions, tantamount among them is whether the President and/or Vice President lied to the prosecutor when they were originally questioned by him about their knowledge of the leak of the identity of covert CIA operative, Valerie Plame Wilson.
***
The Washington Post had this to say about the case:
As he drew back the curtain this week on the evidence against Vice President Cheney's former top aide, Special Counsel Patrick J.
Fitzgerald for the first time described a "concerted action" by "multiple people in the White House" -- using classified information
-- to "discredit, punish or seek revenge against" a critic of President Bush's war in Iraq.Bluntly and repeatedly, Fitzgerald placed Cheney at the center of that campaign. Citing grand jury testimony from the vice president's former chief of staff, I. Lewis "Scooter" Libby, Fitzgerald fingered Cheney
as the first to voice a line of attack that at least three White House officials would soon deploy against former ambassador Joseph C. Wilson IV.
It seems inevitable that if this eventually comes to trial, Dick Cheney will end up on the witness stand, and that could be embarrassing for the administration.
But it wasn't just Cheney who occupied the hot seat this past week:
The revelation that President Bush authorized former White House aide I. Lewis "Scooter" Libby to divulge classified information about Iraq fits a pattern of selective leaks of secret intelligence to further the administration's political agenda.
Bush, Vice President Dick Cheney and other top officials have reacted angrily at unauthorized leaks, such as the exposure of a domestic
wiretapping program and a network of secret CIA prisons, both of which are now the subject of far-reaching investigations.But secret information that supports their policies, particularly about the Iraq war, has surfaced everywhere from the U.N. Security
Council to major newspapers and magazines. Much of the information that the administration leaked or declassified, however, has proved to
be incomplete, exaggerated, incorrect or fabricated.
Ok, so this raises more uncomfortable issues for the White House to deal with- did Bush lie to Congress when he went to them requesting the authorization for war? Lying to Congress is no small matter, particularly when it concerns something as grave as waging war. So far, the media has virtually ignored this legal question and its implications.
Another issue is did Bush follow the correct declassification procedures when he selectively declassified parts of the NIE which supported his case for war (while keeping those parts that didn't, classified)?
No one is claiming that Bush doesn't have the ability to declassify such information, but the question of why he did so and how
he did so, are relevant in determining abuse of executive privilege. In other words, if he did it in furtherance of a political scheme to smear Ambassador Joe Wilson, that is extrememly problematic. If he did it to mislead the American people about the threat Saddam posed to the United States, that is also problematic.TruthOut puts it this way:
Now that President Bush's knowledge of the Plame Wilson affair hasbeen exposed, there are thorny questions about whether the president
has broken the law - specifically, whether he obstructed justice when he was interviewed about his knowledge of the Plame Wilson leak andthe campaign to discredit her husband.Details of President Bush's involvement in the Plame Wilson affair came in a 39-page court document filed by Fitzgerald late Wednesday
evening in US District Court in Washington.Fitzgerald's court filing was made in response to attorneys representing I. Lewis "Scooter" Libby, Vice President Dick Cheney's
former chief of staff, who was indicted on five counts of perjury, obstruction of justice, and lying to investigators for not telling the
grand jury he spoke to reporters about Plame Wilson...[snip]
...The attorneys and officials close to the case said over the weekend that the hastily arranged meeting was called by Cheney to
"brief the president" on Wilson's increasing public criticism about the White House's use of the Niger intelligence and the negative
impact it would eventually have on the administration's credibility if the public and Congress found out it was true, the sources said.Bush said publicly in October 2003 that he had no idea who was responsible for unmasking Plame Wilson to columnist Robert Novak and other reporters. The president said that he welcomed a Justice Department investigation to find out who was responsible for it.
But neither Bush nor anyone in his inner circle let on that just four months earlier, they had agreed to launch a full-scale campaign
to undercut Wilson's credibility by planting negative stories about his personal life with the media.
Some blogs, in particular Firedoglake and the legal blog, Talk Left(two blogs where resident lawyers analyze all the filings in the Plame case in exhaustive detail), believe that the latest flurry of filings from Scooter Libby are meant to achieve one thing- a presidential pardon for Libby.
Libby is holding all the cards right now and his latest filings could be a warning shot across the administration's bow- a way of saying, "I can hurt you unless you do something for me." The fact that Bush isn't up for re-election could make this a real possibility as he wouldn't have to deal with the political fallout for issuing such a politically-motivated pardon. But the GOP would likely suffer politically as a result.
]]>I blogged on this case earlier(see law section) and that post provides some background to the issues in the case.
]]>I blogged on this case earlier(see law section) and that post provides some background to the issues in the case.
Prior to the verdict, there was no real consensus in the legal community about how the jury would decide although many felt that the government's legal theory was a bit too attenuated and novel to impose the death penalty.
From
CNN(immediately prior to the verdict being announced):
The panel is deciding only whether Moussaoui is eligible for the death penalty.
To find that he is, the jury must unanimously agree that prosecutors proved Moussaoui intentionally lied to federal agents who interrogated him in August 2001, that he lied with lethal intent, and that his lies directly resulted in at least one death in the September 11, 2001, terrorist attacks.
"He concealed the valuable information that he had about the impending attacks," prosecutor David Raskin said last week, summarizing the government's case.
"If the defendant hadn't lied," he said, the government could have used Moussaoui's leads "to prevent the attacks or at least some part of the attacks."
Moussaoui, 37, pleaded guilty last year to six terrorism conspiracy charges stemming from the plot to hijack planes and crash them into prominent buildings.
The quotes are taken from an article written about fourty minutes prior to the jury verdict (thus the future-tense throughout most of the article). The court announced at about 3pm that the verdict would be read at 4pm, giving news outlets little time to prepare. There is no article at any of the media websites yet on the verdict, only a "breaking news" announcement of the results.
At this time, I can't provide a summary of the reaction in the women's [legal] blogosphere because it's too early for a response but I will follow up tomorrow to see how some of the legal blogs are responding to this jury verdict.
]]>This case has been controversial since day one. It involves the alleged 9/11 co-conspirator, Zacharias Moussaoui. The government's case hinges on a problematic legal theory- mainly, that Moussaoui is directly responsible for the 3,000 deaths on September 11th. The problematic part is that Moussaoui was actually in a federal jail on September 11th and in a death penalty case, both judges and juries are not fans of such attenuated reasoning.
]]>This case has been controversial since day one. It involves the alleged 9/11 co-conspirator, Zacharias Moussaoui. The government's case hinges on a problematic legal theory- mainly, that Moussaoui is directly responsible for the 3,000 deaths on September 11th. The problematic part is that Moussaoui was actually in a federal jail on September 11th and in a death penalty case, both judges and juries are not fans of such attenuated reasoning.
In addition to the legal theories of the government, this case has garnered harsh criticism from just about everyone- legal scholars, court watchers and both the political left and the right because it is widely believed that the government has made grossly incompetent mistakes throughout the trial. As the http://www.washingtonpost.com/wp-dyn/content/article/2006/03/19/AR200603... >Washington Post
rather harshly noted the other day:The death penalty case against accused Sept. 11 conspirator Zacharias Moussaoui has barely survived the government's latest bout of incompetence.
In a blatant violation of a court order, a Federal Aviation Administration lawyer working on the case sent key aviation witnesses a transcript of the government's opening statement, along with her comments on it. This led U.S. District Judge Leonie M. Brinkema to exclude those witnesses -- potentially crippling the prosecutors' case for execution of the only person to face trial for the attacks on the Pentagon and the World Trade Center.
On Friday, Judge Brinkema revised her order, allowing the testimony of aviation witnesses untainted by the misconduct. So the case will now limp forward.
And http://www.cnn.com/2006/LAW/03/17/moussaoui.trial/ >CNN
weighed in with a description of the government's witness tampering:E-mails used to show that Carla Martin had coached government witnesses in the Moussaoui trial also expose an incestuous and inappropriate relationship between the Transportation Security Administration and airlines, say attorneys for families of some victims.
[snip]
U.S. District Judge Leonie Brinkema found that Martin violated a court order instructing witnesses to avoid following court proceedings or discussing them with each other until they had testified.
Moussaoui's sentencing trial came to a halt this week after it was discovered Martin had e-mailed commentary, opening statements and witness testimony to a half-dozen scheduled aviation security witnesses.
This case obviously has political implications at a time when a majority of Americans are now questioning the government's ability to successfully wage the war on terror- a war which necessarily includes prosecuting alleged terrorists- something the goverment has thus far been unable to do in the high profile cases that it's taken on (ie. the infamous shoe-bomber case and others).
Jeralyn and the folks over at the legal blog, http://talkleft.com/new_archives/014343.html >Talk Left
, have been following this case closely since the beginning and they predict this outcome (below) for the trial and if they are right, it doesn't bode well for the government:I suspect the Judge will end the trial by ruling against the Government when the Defense makes a motion for acquittal at the conclusion of the Government's case.
The Government will not have shown that but for Moussaoui's lies to the FBI, even one person would not have died. His connection to 9/11 is too peripheral and it's also doubtful that even with his information, the attacks would have been prevented. Moussaoui just wasn't in the fold. A bumbling holy warrior who intended to do damage at some point, yes. But one of those responsible for the 9/11 deaths, no.
If they are wrong about this outcome, it could set an interesting, and some might even say troubling, criminal law precedent with respect to further death penalty cases and not just those in the terrorism arena.
We'll see...
]]>All 50 states currently have laws that deal with visitation rights for non-parents and specifically, for grandparents. These state laws generally fall into two categories- 1) very restrictive in that they favor parental rights and make it difficult for a grandparent or other party to sue for visitation rights (although not impossible) and 2) very broad statutes which allow grandparents to argue that allowing visitation is in the best interest of the child, even if the parent(s) don't want to grant visitation.
The Family Law Professor blog has a nice recap of the issue and the facts of the current case denied review by the High Court:
The father, who had never married the girl's mother, won custody of the child but refused to allow her to see her maternal grandparents. The Ohio Supreme Court ruled that the girl should be allowed to maintain contact with the grandparents who had raised her until she was 5 years old.
The father, Brian S. Collier, shared a relationship with the mother that produced a daughter in 1997. They never married, and following the child's birth, the child's mother was designated as her residential parent and the father received supervised visitation with the child twice a week. From her birth, the child resided with her mother at the home of her maternal grandparents. The child's mother was suffering from cancer, and the grandparents cared for her and their granddaughter until the mother's death in 1999.
Following their daughter's death, the grandparents were granted temporary legal custody of the child. The father later filed for legal custody and in 2002 an Ohio Juvenile Court designated him as the residential parent. On July 31, 2002, he removed the child from her grandparent's home, where she had lived for the previous five years, and refused to permit any further visitation her and her grandparents.
The case was being watched closely by both parental rights and grandparent rights/advocacy organizations, particularly after the Supreme Court handed down a case in 2000, Troxel v. Granville 530 U.S. 57, which was seen by many as making it much harder for grandparents to win visitation rights against a parents wishes as the Supreme Court articulated a presumption that a "fit parent" acts/makes decisions in the best interest of their child. That presumption is not irrefutable, however, and the burden of demonstrating the parental decision is not in their childs best interest [with respect to grandparent visitation] generally lies with the grandparent[s].
]]>Law blogger, Ann Althouse, reflects on the case and ultimately decides the legal issue at stake is rather "boring" although the individual justices made the whole affair much more interesting by seemingly siding with Anna Nicole. Add to that the fact that the President himself sided with her legal position and sent the Assistant Solicitor General to argue on behalf of her legal claim plus the legions of paparazzi outside the Court trying to get pictures of Anna Nicole's outfit (and perhaps other things, *ahem*) and you have a slightly less boring case.
]]>Law blogger, Ann Althouse, reflects on the case and ultimately decides the legal issue at stake is rather "boring" although the individual justices made the whole affair much more interesting by seemingly siding with Anna Nicole. Add to that the fact that the President himself sided with her legal position and sent the Assistant Solicitor General to argue on behalf of her legal claim plus the legions of paparazzi outside the Court trying to get pictures of Anna Nicole's outfit (and perhaps other things, *ahem*) and you have a slightly less boring case.
Justice Scalia started off the questioning in his usual warm fuzzy manner by asking Anna Nicole's attorney:
"Do you want to stand on that position or do you have a lesser position? One that might cause you to win?"
Ouch. But Professor Althouse points out that that isn't really reason for Anna Nicole to despair as you could basically ask that of any attorney appearing before the Court.
Slate's Dahlia Lithwick did a nice job of summarizing the legal issue, which actually turns on more than simply who gets Daddy Marshall's buckets of cash (ie. his wife Anna or his son).
This litigation has seen the inside of four courthouses already. First there was the Texas probate court, which determined that Anna was entitled to nothing, save the $6 million in gifts she had already earned while her husband was alive. Then the California federal bankruptcy court weighed in, when Anna declared bankruptcy there. That court found that the widow was entitled to $449 million, plus $25 million in punitive damages, for E. Pierce's alleged acts of fraud in messing up her inheritance. Then a California district court reduced that amount to $88 million, but nevertheless concluded that J. Howard loved his wife and planned to take care of her, and that his son and weasely lawyers had cooked the documents and fooled the old man as he lay dying. The 9th Circuit Court of Appeals in turn reversed that decision, contending that the federal bankruptcy court in California had no business meddling into the affairs of a Texas probate court in the first place.
Today's dispute is about the boundaries between state and federal courts-whether there is a zone outside ordinary federal court jurisdiction known as the "probate exception." (Try dancing naked to that.) Even though federal bankruptcy courts have rather broad jurisdiction, they have, for centuries, butted out in the areas of domestic relations and probate-under the theory that state courts are better-positioned to decide them. The 9th Circuit said the bankruptcy court should butt out here, meaning Anna gets nothing. She appealed, and the Supreme Court granted certiorari, thus making for the happiest crop of law clerks in modern memory.
I have to admit to being a bit perplexed about the administration's taking the position on behalf of expanded federal jurisdiction but I haven't actually read the Solicitor General's argument yet.
Whatever the ultimate decision, no one can argue that Anna Nicole hasn't had her day in Court.
]]>The law, which would punish doctors who perform the operation with a five-year prison term and a $5,000 fine, awaits the signature of Republican Gov. Michael Rounds and people on both sides of the issue say he is unlikely to veto it.
My understanding is we are the first state to truly defy Roe v. Wade, the 1973 high court ruling that granted a constitutional right to abortion, said Kate Looby of Planned Parenthood's South Dakota chapter.
State legislatures in Ohio, Indiana, Georgia, Tennessee and Kentucky also have introduced similar measures this year, but South Dakota's legislative calendar means its law is likely to be enacted first.
What is notable about the South Dakota law, other than simply the fact that it is currently unconstitutional on it's face, is that it provides for no exception for when the health of the mother is at stake and in cases of rape and incest. This is notable because polls have shown that most Americans, even many (but certainly not all) who oppose abortion on moral grounds, believe that such exceptions should be allowed.
Redd, blogging over at Firedoglake, shares a very personal experience- that she herself is a rape survivor. She goes on to explain how her personal experience as such has informed her views on not only abortion in general, but the South Dakota law:
As I said, I was young -- but despite how horribly brutal the rape was, I was lucky. I never had to face the choice of an abortion because I did not get pregnant. Thank God.
But every single time I hear someone talk about being pro-life without giving a thought to the woman involved, I cringe. Because I could have easily been impregnated against my will. Violently, viciously impregnated.
And now, some young girl in South Dakota who is raped and finds herself pregnant will be forced to carry the child of her rapist, feeling it grow and move, a daily reminder of the rape -- with the flashbacks, the terror, the nightmares, the gut-wrenching fear -- everything that you have to overcome after being raped, along with handling the emotions and the responsibilities that come along with a pregnancy.
It is likely that many states with anti-abortion laws in the works, are closely watching the general reaction to the South Dakota law and it will be interesting to see not only how the Supreme Court views the law when it comes before them, but also how average Americans who are not firmly entrenched in either the pro-life or pro-choice camp, feel about a law that provides for outlawing abortion without much exception.
]]>The state pharmacy board ordered Wal-Mart on Tuesday to stock emergency contraception pills at its stores in Massachusetts.
Massachusetts becomes second state to require the world's largest retailer to carry the morning-after pill.
A Wal-Mart spokesman said the company would comply with the directive by the Massachusetts Board of Pharmacy and is reviewing its nationwide policy on the drug.
"Clearly women's health is a high priority for Wal-Mart," spokesman Dan Fogleman said. "We are actively thinking through the issue."
Some women in the blogosphere aren't so sure that womens health is really such a high priority for Walmart. Bitch, PhD says:
Clearly, however, women's health--as opposed to, oh, not being sued--is a high priority for them. Which is, of course, why so many of their women employees don't have employer-provided health care. They're givers, those folks at Wal-Mart.
Ouch. And over at Inspirational Lifestyle, Walmart's proffered rationale for not stocking Plan B- that it was merely a business decision and not a moral one- is being met with skepticism:
"I would respect WM more if they just came out and said that they don't think it's morally right to fill Plan B; at least then they'd be speaking honestly. Why hide behind the vague "business decision" excuse?
Opponents argue that making Plan B readily available would increase promiscuity. I doubt it. High school kids have been getting themselves knocked up for ages without having this available-why would stupidity increase now?"
And don't forget, Walmart apparently sells condoms...just food for thought.
Renee, over at Up on a Christian Hill, doesn't think selling Plan B is such a good idea, however:
It's been a crappy V-Day here Wal-Mart is being force to carry "Plan B" up here in Massachusetts by NARAL. Nothing says romance like taking the equivalent of 8 progesterone birth control pills in a 12-hour period for that special hook up. You'll know if a guy is interested in a second date if he goes dutch on the cost of the pills.
Clearly, the battle over reproductive freedom is no longer taking place just outside of clinics and courtrooms- it has shifted to pharmacies across America as pharmaceutical/medical advances allow women more privacy with respect to these sorts of choices.
Somehow I don't think we've heard the last of this issue.
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